Allers v. State

• Decision Date: 27 June 1923
• Docket Number: 67.
• Citation: 124 A. 399,144 Md. 75
• Parties: ALLERS v. STATE.
• Court: Maryland Court of Appeals

124 A. 399

144 Md. 75

ALLERS v. STATE.

No. 67.

Court of Appeals of Maryland

June 27, 1923

Appeal from Circuit Court, Baltimore County; Frank I. Duncan and Walter W. Preston, Judges.

"To be officially reported."

Frank L. Allers was convicted of burglary, and he appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

Richard E. Preece, of Baltimore (Malcolm Coan of Baltimore, on the brief), for appellant.

Alexander Armstrong, Atty. Gen. (H. Courtenay Jenifer, State's Atty., of Towson, on the brief), for appellee.

ADKINS J.

Frank L. Allers on December 7, 1922, was indicted by the grand jury of Baltimore county for the burglarizing, breaking, and entering the dwelling house of Thomas D. Hooper and Lula N Hooper in said county on or about 2 o'clock a. m. of the 8th day of June, 1922, and with stealing a lot of various kinds of alcoholic beverages, including whisky and champagne. He pleaded not guilty, and filed a suggestion for removal which was overruled. He then elected to be tried by the court; the case was heard, and resulted in conviction of the accused; whereupon he was sentenced to serve a term of ten years in the Maryland penitentiary. From that judgment this appeal was taken.

There are in the record 18 bills of exception, 1 (the first) to the overruling of defendant's suggestion for removal, and 17 to rulings of the trial court on evidence. In his brief appellant raises but two questions: One embraced in his first bill of exception, and the other in the bills of exception from 11 to 18, inclusive. As the exceptions from 2 to 10 inclusive, were practically abandoned, certainly not pressed, it will not be necessary to refer to them further than to say that we find no prejudicial error in any of the rulings covered by these exceptions.

In his brief appellant says:

"The questions desired to be raised by the appeal are two: First, whether the action of the court below in refusing the motion for removal was arbitrary; second, was the appellant entitled to show the full extent of the immunity promised him in return for his services to the state in the various trials growing out of the Norris Murder?"

As to the first question: The reasons given in the motion for removal are stated in the motion substantially as follows: That there is intense prejudice and bitter feeling prevailing against him throughout Baltimore county in connection with his participation as a principal in the recent Norris robbery and murder, one phase of which case, being the trial and conviction of Walter Socolow, took place in said county, and as a result of the self-revelations of the defendant in the Socolow Case, in which trial this defendant, as state's witness under a promise of immunity by the state's attorney of Baltimore City, not only confessed active participation as a coprincipal with Socolow in the Norris murder, but revealed his activities as a habitual gangster operating in Baltimore county and Baltimore City for at least a year prior to the Norris murder, which occurred on August 18, 1922, and was denounced by both Socolow's counsel and the prosecuting attorneys in that case.

This motion was sworn to by the defendant in the usual form of affidavit attached to suggestions for removal, but there is no proof offered, other than this, of the existence of such prejudice as would prevent the defendant from having a fair trial.

In 4 Ency. Pleading and Practice, p. 499, it is said: "When the lower court is vested with a discretion to grant or refuse a change of the place of trial, its action will not be revised, unless there has been an abuse of the discretion. The reason for this rule is obvious. Whether a change of venue is necessary to obtain a fair and impartial trial is not a question of law but of fact. A judge on the spot, viewing all the circumstances, and having knowledge of facts and influences, is much better qualified than is an appellate court at a distance with only ex parte affidavits before it, to determine the fact whether or not it is true that the defendant cannot have a fair trial by an impartial jury in the county in which he is indicted or in which the plaintiff has commenced his suit."

See, also, 12 Cyc. 243; 1 Bishop's New Criminal Process, § 72, par. 2; Commonwealth v. Allen, 135 Pa. 483, 19 A. 957; Hauk v. State, 148 Ind. 238, 46 N.E. 127, 47 N.E. 465; State v. Smarr, 121 N.C. 669, 28 S.E. 549.

In article 4, § 8, of the Constitution of Maryland, it is provided that, in all criminal cases other than those punishable by death on a petition...