Jones v. State., 23.

• Decision Date: 08 January 1946
• Docket Number: No. 23.,23.
• Parties: JONES et al. v. STATE.
• Court: Maryland Court of Appeals

45 A.2d 350

JONES et al.

v.STATE.

No. 23.

Court of Appeals of Maryland.

Jan. 8, 1946.

COPYRIGHT MATERIAL OMITTED.

Appeal from Circuit Court, Wicomico County; W. Laird Henry, Chief Judge, and Levin C. Bailey and Edmond H. Johnson, Judges.

Weldon Jones, Jr., and Holbrook Jones were convicted of murder in the first degree, and they appeal.

Reversed and remanded with directions.

W. A. C. Hughes, Jr., of Baltimore, for appellants.

Harry C. Dashiell, Acting State's Atty., of Princess Anne, and J. Edgar Harvey, Atty. Gen. (William Curran, Atty. Gen., and Rex A. Taylor, State's Atty., of Salisbury, on the brief), for appellee.

Before DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

GRASON, Judge.

Weldon Jones, Jr., a colored boy eighteen years of age, and his brother Holbrook Jones, fourteen years of age, were convicted by the judges of the Circuit Court for Wicomico County, without the aid of a jury, of murder in the first degree. Weldon was sentenced to be hanged, Holbrook to the Penitentiary of the State of Maryland for the term of his natural life. They appealed to this court.

The indictment against them, upon which they were tried and convicted, was returned by the grand jury of Somerset County. It charges that these brothers ‘on the 12th day of January, 1945, at the County and State aforesaid, feloniously, wilfully, and of deliberately premeditated malice, aforethought, did kill and murder, I. Raynor Graham.’ The accused filed in the Somerset court a suggestion, supported by their affidavit, that they could not obtain a fair and impartial trial in that court, or any court of the circuit, and prayed that an order be passed for the removal of the record in the case to a court of some other circuit for trial. Their counsel wrote a letter to the presiding judge of the court, in which he objected to the trial of the case ‘in Dorchester County for the reasons set out in my motions for change of venue filed in Indictments two and five.’ These motions are not contained in this record. The Circuit Courts for Somerset, Dorchester and Wicomico Counties are in the First Judicial Circuit of Maryland. The court, however, disregarded request of the accused to send the case to a court in another circuit, and sent the same to the Circuit Court for Dorchester County for trial. Thereafter the State's Attorney for Somerset County filed a suggestion, supported by his affidavit as State's Attorney, that the State could not have a fair and impartial trial in that court, and prayed that the record be sent to some other court in the circuit for trial. On March 6, 1945, the accused filed a paper in the Circuit Court for Dorchester County, captioned ‘Petition for Change of Venue’. It was sworn to by the accused and, among other things, contains the following allegations of facts: That they cannot have a fair and impartial trial in this court (Circuit Court for Dorchester County) or any other court in this circuit; that the crimes for which the defendants have been indicted have created a great deal of unrest and racial friction throughout the circuit, and more particularly in Somerset County; that mobs of armed men formed to track down and capture the defendants, and said mobs threatened bodily harm to them; that the situation became so acute it was necessary for the head of the Maryland State Police to rush sixty State troopers to the scene in an effort to quiet violence and to safeguard the lives of these defendants; that said troopers were forced to transport the defendants, under cover of night, out of the community to the western shore of the State, where these defendants were housed for safe-keeping in the Harford County jail; that resentment against Negroes has been so great that other Negro citizens and residents of this county and circuit were advised and did remain in their homes to prevent racial riots; that the parents, brothers and sisters of the accused were forced to leave their homes to prevent molestation and possible mob reaction; that a mob did break into and ransack the home in which the accused lived at the time of the commission of these crimes; that on February 14th, 1945, the above suggestions for removal were acted upon by the court and the causes removed from Somerset County to Dorchester County; that the cases against the accused were moved by the State to Wicomico County; that Wilcomico County is much closer to the community where the crimes occurred than is Dorchester, and is subject to more local prejudice against the defendants, due to statements printed in local and state-wide newspapers alleging confessions and admissions of guilt had been secured from the defendants; that accused believe it is impossible for a jury to be selected in any county in the circuit which would render a fair, impartial and unprejudiced verdict; that the accused were constrained to forego their right to trial by jury, which will result in a denial to them of due process of law; that they were compelled to relinquish their right to a jury trial and forced to accept the alternative of a trial by the court, without the aid of a jury. They prayed that the record be removed to a court of some other circuit, other than the First Judicial Circuit, and they except to the removal of this cause to Wicomico County for trial.

This petition was not replied to by the State either by way of demurrer or traverse, and on March 8th, two days after the filing of the petition, the record was transmitted to the Circuit Court for Wicomico County for trial. This appears from the docket entries in the case, while pending in the Circuit Court for Dorchester County, and is reviewable by this court. The case was tried in the Circuit Court for Wicomico County on the 21st day of March, 1945. On that day the traversers filed a motion for change of venue, an exact copy of the petition for change of venue filed by traversers in the Circuit Court for Dorchester County on March 6, 1945. The court overruled the motion. It is noted here that the State made no reply to the motion then filed, either by demurrer or traverse.

The petition of the accused for a change of venue, filed in the Circuit Court for Dorchester County, was a pleading. The State could not ignore it, because in the absence of a demurrer thereto or a traverse of the allegations of fact by the State, the facts averred must be taken as true. It was not competent for the court to ignore or summarily dismiss the petition, for no matter of law or fact was before it until the State either demurred thereto or traversed the facts alleged. If the State had denied the facts alleged in the petition, the accused would have been put to proof of the facts therein alleged. The testimony adduced would have constituted the material upon which the discretion of the court would operate. Upon review, this court could determine if the discretion exercised was arbitrary and hence abused. We are not unmindful of the provision of Article 4, section 8 of the Constitution of this State, which gives a right of a removal to both the State and the accused. But this right contemplates a removal to a court where the jury is unprejudiced, and will render a fair and impartial verdict based on the law and the evidence. A trial before such a jury is one of the most cherished rights of the citizen. A denial of this right would destroy due process of law. A citizen should not be coerced to relinquish his right to a jury trial and submit to a trial before the court, in order to escape an intolerable situation of a trial before a prejudiced jury. When, therefore, a suggestion that a party cannot have a fair and impartial trial, supported by affidavit, is filed in a court where a case is pending, it is the duty of the court to order a removal of the record to some jurisdiction where the jury will not be prejudiced. If it appears doubtful that the juries in a given circuit would be fair and impartial, the case should be removed to some other circuit or some other section of the State. Without rehearsing the allegations contained in the petition of the accused for a change of venue, it is sufficient to say it contains averments which, not being contradicted by the State, must be taken as true, and cast a grave doubt upon the question of whether the accused could have obtained a fair trial before a jury in Wicomico County. It is unnecessary for us to review the law governing the matter. It has been so recently and so well done by the late Chief Judge Bond in the case of Lee v. State, 161 Md. 430, 157 A. 723, 727. In the opinion in that case all the previous pronouncements of this court were reviewed. It is the law of this State, and decisions of other courts need not be cited....