State v. Simms, 311
| Decision Date | 30 March 1964 |
| Docket Number | No. 311,311 |
| Citation | 234 Md. 237,198 A.2d 891 |
| Parties | STATE of Maryland v. John E. SIMMS. |
| Court | Maryland Court of Appeals |
Mathias J. DeVito, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, Marvin H. Anderson, State's Atty. for Anne Arundel County, Annapolis, and Leonard T. Kardy, State's Atty. for Montgomery County, Rockville, on the brief), for appellant.
Harper M. Smith, Rockville, and Kathryn E. Diggs, Wheaton, for appellee.
Argued before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and MARBURY, JJ.
Reargued before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.
This appeal by the State presents a single legal issue to be determined. Did the lower court commit reversible error in failing to grant, in a criminal case involving a capital offense, the State's first and only suggestion for a removal? The State contends that it did, and we agree. The right of the State to appeal is conceded by the appellee. See Heslop v. State, 202 Md. 123, 95 A.2d 880, and State, to Use of Dunnigan, v. Cobourn, 169 Md. 110, 179 A. 512.
The unchallenged facts are as follows. The appellee, John E. Simms, was indicted on August 18, 1961, in Anne Arundel County on a charge of murder in the first degree. On November 3, 1961, he filed a plea of not guilty by reason of insanity, and on his own motion was transferred to the Clifton T. Perkins Hospital for examination and report. Then on August 21, 1962, the appellee filed a suggestion of removal under oath, alleging that he could not have a fair and impartial trial in Anne Arundel County. A stipulation entered into by the attorney for the appellee and the State's Attorney for Anne Arundel County was filed, which provided as follows:
'It is hereby stipulated by and between Eleanor A. Crawford, Attorney for Defendant, and C. Osborne Duvall, State's Attorney, that the above entitled case may be transferred from the County of Anne Arundel to the County of Montgomery in the State of Maryland and that the Court may forthwith make an Order to that effect.'
An order was signed removing the case to Montgomery County for trial.
On August 21, 1963, after some discovery proceedings had been conducted in the case in the Circuit Court for Montgomery County, the State filed suggestions of removal executed under oath respectively by the State's Attorney for Anne Arundel County and the State's Attorney for Montgomery County. The court, in a written order, denied the motion on the ground that the State had exercised its constitutional right to a removal when it entered into the stipulation in Anne Arundel County. It is from that order that the State has appealed.
Appellee concedes that this Court has many times held that Article IV, Section 8 of the Maryland Constitution gives each party an absolute right of removal in criminal cases involving capital punishment. Kisner v. State, 209 Md. 524, 122 A.2d 102; Jones v. State, 185 Md. 481, 45 A.2d 350; and State, to Use of Dunnigan, v. Cobourn, supra. He nevertheless contends that the facts indicate that the State had exercised its right to remove the case when it entered into the stipulation, or alternatively, that the State waived or is estopped from asserting that right now. We think the stipulation falls short of an exercise of the right of removal and that the State's conduct falls short of a waiver and did not give rise to an estoppel. Cf. Caledonian Fire Ins. Co. v. Traub, 86 Md. 86, 37 A. 782. The constitutional provision, in addition to requiring that the request for removal be made under oath also requires an allegation that the moving party is unable to get a fair and impartial trial in the court in which the case is pending. The stipulation contained neither requisite. We think that fairly interpreted, the stipulation amounted to no more than an acquiescence on the part of the State to the appellee's request that the court, in granting the appellee's suggestion of removal, transfer the case to Montgomery County rather than to some other forum. The court in Anne Arundel County was not bound to accede to the recommendation contained in the stipulation that it be removed to Montgomery County and could have removed the case to a court of competent jurisdiction in any of the other counties or Baltimore City.
Nor can it be contended successfully that the stipulation amounted to a waiver on the part of the State. The appellee would have us give a broader meaning to waiver than the classic 'intentional relinquishment of a known right.' He cites Gould v. Transamerican, 224 Md. 285, 167 A.2d 905, for the proposition that waiver includes also...
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Smith v. Pearre
...for remand, appellants waived their right to seek removal. While the right of removal may be waived or surrendered, State v. Simms, 234 Md. 237, 198 A.2d 891 (1964), we believe that under the facts of this case appellants did not waive the right. We reject appellees' contention that once th......
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State v. Long
...Constitution which gives each party an absolute right of removal in criminal cases involving capital punishment. State v. Simms, 234 Md. 237, 198 A.2d 891 (1964). In Simms the Court said, page 240, 198 A.2d page '* * * (I)t is settled law that the right to remove, where granted, continues u......
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Shreffler v. Morris, 433
...the right can be exercised only once, Price v. State, 8 Gill 295 (1849); that it may be expressly surrendered or waived, State v. Simms, 234 Md. 237, 198 A.2d 891 (1964); Caledonian Fire Ins. Co. of Scotland v. Traub, 86 Md. 86, 37 A. 782 (1897); or having been asserted, may be withdrawn be......
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Johnson v. State
...first instance, is absolute. Constitution, Art. IV, Sec. 8; Code, Art. 75, § 44 (1969 Repl. Vol.); Maryland Rules 542 and 738; State v. Simms,234 Md. 237 (1964). For the history of Sec. 8 see Heslop v. State, 202 Md. 123, 95 A.2d 880 (1953). Further removal requires the party making the sug......