McMillan v. State

Decision Date06 January 1888
Citation12 A. 8,68 Md. 307
PartiesMCMILLAN v. STATE.
CourtMaryland Court of Appeals

Appeal as upon writ of error from circuit court, Allegany county.

D. W. Sloan and William Brace, for appellant.

C. B. Roberts, Atty. Gen., for the State.

BRYAN, J.

An order removing or refusing to remove a cause, civil or criminal, to another court for trial finally adjudicates a constitutional right of the party affected by the order. And it is regarded as a judgment, from which, according to the nature of the case, an appeal or writ of error may be immediately prosecuted. Wright v. Hamner, 5 Md. 375; State v. Shillinger, 6 Md. 449; Griffin v. Leslie, 20 Md. 15. In Cromwell v. State, 12 Gill & J. 257, the judgment was affirmed; although the attention of the court was called to the circumstance that the writ of error was sued out before sentence. In this last case, however, the attorney general declined to take any objection to the writ on this ground, and no notice of it was taken in the opinion of the court. An order of this kind, however, cannot be made the subject of a bill of exceptions under the act of 1872, c. 316, and the subsequent statutes re-enacting and amending it. Smith v. State, 44 Md. 530; Dulany v. State, 45 Md. 99.

We do not sustain any of the assignments of error. The eighth section of the fourth article of the constitution was altered in some respects by the ratification of the amendment proposed in the act of 1874, c. 364. We do not doubt the right of the state to remove a criminal case under the provisions of the amended section; and we think that the state's attorney is the proper person to make the affidavit for removal in behalf of the state. We also approve of the decision in Price's Case, 8 Gill, 295, that the removal may be made at any time before the panel of twelve jurors is completed by being duly sworn. Judgment affirmed.

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