Smith v. State

Decision Date12 May 1876
Citation44 Md. 530
CourtMaryland Court of Appeals

APPEAL from the Criminal Court of Baltimore.

The case is stated in the opinion of the Court.

The cause was submitted to BARTOL, C.J., STEWART, BOWIE and ALVEY, J.

Frank X. Ward, for the appellant.

The appellant having been indicted previous to the adoption of the Constitutional amendment, the Court did wrong in refusing his prayer, as he was entitled to the right of removal secured to him by the Constitution in force at the time when the indictment was found, upon his filing his suggestion with the proper affidavit, whenever his case might be called for trial, otherwise, he would be deprived of a vested right, and the amendment would be retroactive and retrospective.

A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, is to be deemed retrospective or retroactive. Soc. for Prop. of Gospel vs. Wheeler, 2 Gallison, 105; Calder vs. Bull, 3 Dall., 390.

It has been held in many instances, that enactments of the Legislature, creating new exceptions or defences, or modifying previous remedies, shall be so construed as not to affect rights of action which have attached and become vested under the original law and existing at the time of the repealing statute. Bedford vs. Shilling, 4 Serg. & Rawle, 401; Duffield vs. Smith, 3 Serg. & Rawle, 590.

A statute may have a retroactive or retrospective effect for some purposes, as statutes of oblivion or pardon, but it can have no such effect if it comes within the purview of some express prohibition contained in a State Constitution. Sedgwick on Cons. of Stat. and Con. Law, 173.

The object of the right or privilege of removal of a case is to secure a fair and impartial trial and promote the ends of justice, by getting rid of the influences of some local prejudice which might operate detrimentally upon the rights of parties to the suit, and this right or privilege, so valuable, has been enlarged, secured, and placed upon a more sure and certain foundation by Constitutional provisions embodied in all our State Constitutions from 1806 to 1867. Negro Jerry, et al. vs. Townshend, 2 Md., 278; Wright vs. Hamner, 5 Md., 370; Griffin vs. Leslie, 20 Md., 18. And whenever this privilege or right has come under consideration by the Courts, it has been construed liberally to secure this object. Cooke vs. Cooke, 41 Md., 367.

Attorney General Gwinn, for the appellee.

BOWIE J., delivered the opinion of the Court.

The appellant was indicted on the 9th of November, 1875, in the Criminal Court of Baltimore, for violating the provisions of the Code of Public General Laws, relating to lotteries.

On the 18th of December following, he filed a suggestion in writing, that he could not have a fair and impartial trial in that Court, and prayed the record of the case might be removed to some adjoining Circuit for trial, with an affidavit that the suggestion was true, annexed. The Court after argument, overruled the motion for removal on the 20th of December, when the accused prayed an appeal. On the 4th of January, 1876, the accused tendered his bill of exceptions setting out the preceding facts, and prayed an appeal.

The appellant insists that being indicted prior to the amendment of the Constitution, qualifying the right of removal in certain specified criminal cases, he was entitled to a removal of his case absolutely, upon filing his suggestion and affidavit, according to the original provisions of section 8, Art. 4. The State on the other hand maintains, that the amendment submitted by the Act of 1874, ch. 364, and adopted, as proclaimed by the Governor on the 15th of November, 1875, required the party making the suggestion, "to make it satisfactorily appear to the Court, that such suggestion is true," which condition was not complied with. The appellant contends, that this amendment restricts, if it does not actually take away the right of removal in criminal cases, and cannot operate retrospectively on vested rights.

Preliminary to the consideration of the main question, the State excepts to the jurisdiction of this Court, because the Act of 1872 ch. 316, conferring the right of appeal in criminal cases, requires the bill of exceptions to be taken at the trial, whereas the bill of...

To continue reading

Request your trial
3 cases
  • State v. Kent
    • United States
    • North Dakota Supreme Court
    • 5 Junio 1896
    ... ... v ... Banks, 15 Neb. 20; Fox v. Peo., 95 Ill. 71; ... Earll v. People, 99 Ill. 123; Union Cent. Ins ... Co. v. Cheever, 36 Ohio St. 201; Martin v ... Orndorff, 22 Ia. 505; Hatch v. State, 8 ... Tex.App. 416; Laubach v. State, 12 Tex.App. 583; ... State v. Smith, 1 Am. Cr. Repts. 580; State v ... Johnson, 76 Mo. 121; Kerr on Homicide, § 306. The ... directions of the court to the jury did not cure the error ... Yoe v. People, 49 Ill. 410; State v. Smith, ... 75 N.C. 307; Tucker v. Henniker, 41 N.H. 317; ... Hatch v. State, 8 Tex.App ... ...
  • State v. Johnson
    • United States
    • South Dakota Supreme Court
    • 26 Enero 1910
    ...should receive the same construction, and there is ample authority to support this ruling. Price v. State, 8 Gill (Md.) 296; Smith v. State, 44 Md. 530; Jenks v. 39 Ind. 1; Weaver v. State, 83 Ind. 289; Hunnel v. State, 86 Ind. 431; Edwards v. State, 25 Ark. 444. The wording of section 8111......
  • McMillan v. State
    • United States
    • Maryland Court of Appeals
    • 6 Enero 1888 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. We do not sustain any of the assignments of error. The eighth section of the fourth article of the constitu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT