COLLINS, J., delivered the opinion of the Court.
This is an appeal from a judgment, based on a verdict by a jury finding the appellant guilty on January 13, 1952, of receiving stolen goods.
Before the trial, the judge ordered the clerk to give the jury list to the appellant and the State. The judge and counsel then went to the judge's chambers where the following occurred. Mr. Pagenhardt, attorney for the defendant, stated: "The defendant moves for a change of venue in each of the five cases now pending against him on the ground that public opinion is so aroused in Garrett County that it is bound to have an adverse effect on any jury that may be selected." When asked what affidavits he had with reference to prejudice in the community, defendant's attorney replied that he had one from Miss June Smith, a beautician, no relation to the defendant. Neither this affidavit nor the affidavit made by the defendant appears in the record before this Court nor in the transcript. Mr. Pagenhardt referred also to an article from the local newspaper
The appellant contends here that because of the affidavits from himself and Miss Smith and the newspaper article, the contents of none of these being before us, a change of venue should have been granted. Article 4, Section 8 of the Constitution of Maryland provides in effect that in all cases where the penalty is death, upon suggestion in writing under oath of either party that such party cannot have a fair and impartial trial in the Court in which the case is pending, the said Court shall transmit the case to some other Court having jurisdiction. In cases of penalties other than death "it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same." Code Article 75, Section 109 contains the same provisions. Chapter 69 of the Acts of the General Assembly of 1952, effective June 1, 1952, makes the removal mandatory in all cases "punishable by death or by imprisonment in the Maryland Penitentiary", where such suggestions are filed. Neither this Act of 1952 nor its constitutionality is before us in this case, as the alleged offense occurred before the effective date of that Act. The offense for which the appellant here is indicted provides for confinement in the penitentiary, or in the house of correction, or in jail. Code Article 27, Section 562.
In Downs v. State, 111 Md. 241, 73 A. 893, the appellant was charged with larceny and receiving stolen goods in Baltimore City. He filed a petition for removal of the cases and an affidavit that he could not have a fair and impartial trial in the court of first instance. In
The appellant further claims that because the prosecuting witness in this case was on the petit jury panel for that term of Court, although not on the jury sworn to try the case, a change of venue was necessary. Appellant did not challenge the entire jury panel nor did he challenge any particular juror according to the record in this case. The only reference to the jury panel is the following statement made by his counsel in the judge's chambers: "The second ground [for change of venue] is that Ralph Pritts, one of the prosecuting witnesses, is a member of the petit jury panel. Even though he might not sit on the case this fact might have an adverse effect on other jurors". During the discussion in the judge's chambers it was brought out that the defendant was presented by the grand jury on March 11, 1952, and indicted the following day when he employed counsel. The jury panel was selected the later part of February, 1952. The petit jury panel which included Mr. Pritts was selected before the indictment was returned.
We have found no case and appellant's counsel admitted in this Court that he had found no case which held that the presence of a prosecuting witness on a petit jury panel constituted grounds justifying a change of venue or even a new trial, the latter not having been requested below. He relies strongly however on the case of State v. Thompson, 24 Utah. 314, 67 P. 789. In that case a new trial was granted when a juror who was sworn and who was a member of the jury which actually sat in the case, on his voir dire, said he knew of no reason why he should be disqualified, when, as a matter of fact, it was shown that he was a director,
Rule 9 of the Rules of the Court of Appeals and Code Article 5, Section 10 provides that "in no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the Court below". Cohen v. State, 173 Md. 216, 234, 195 A. 532, 196 A. 819; Davis v. State, 189 Md. 269, 273, 55 A.2d 702; Swann v. State, 192 Md. 9, 11, 63 A.2d 324. Therefore the question as to whether the prosecuting witness should have been on the petit jury panel is not before us here. We cannot say that the trial judge acted arbitrarily or abused his discretion in refusing a change of venue, on the evidence before him and on the grounds relied on by the appellant. As we find no error the judgment will be affirmed.
Judgment affirmed, with costs.