JUDICIARY DEPARTMENT. 115

The sufficiency of an affidavit that the "parties believe they can not have a
fair, etc., trial," not passed on. Desche v. Gics, 56 Md. 137.

There is no right of removal in condemnation proceedings; when application
for removal (even if it otherwise could be granted) comes too late. Baltimore v.
Kane, 125 Md. 136.

Criminal cases.

Since the amendment of 1874, ch. 364, the courts are given the discretion in criminal
cases other than those punishable by death, to order the removal of a case; hence
in the absence of evidence to show that the court acted arbitrarily and abused or
refused to exercise such discretion, the case will not be reversed. The real ques-
tion is not whether the court of appeals would have been satisfied that a fair
trial could not be had in the court of original jurisdiction, but whether there has
been an abuse by that court of the discretion given it by the Constitution. News-
paper clippings and affidavits held not to show conclusively or by positive evi-
dence that the lower court abused its discretion. History and purpose of this
section. Downs v. State, 111 Md. 241.

The portion of this section providing for the removal of criminal cases means
that when the case is to be tried on the presentment and there is a suggestion for
removal, the record of proceedings in such presentment are transmitted, etc. The
section referred to in deciding that a valid presentment is the commencement
of a prosecution within meaning of our statute of limitations applicable tq prose-
cutions for misdemeanors—see art. 57, sec. 11, of the An. Code. State v. Kiefer,
90 Md. 174.

The state may remove a criminal case under this section, and the state's attor-
ney is the proper person to make the affidavit. The removal may be made at any
time before the jurors are sworn. An order removing or refusing to remove a case,
civil or criminal, finally adjudicates a constitutional right and an appeal or writ of
error may be immediately prosecuted; such an order can not be made the subject
of a bill of exceptions. McMillan v. State, 68 Md. 309. And see Smith v. State,
44 Md. 533; Griffin v. Leslie, 20 Md. 19.

This section as amended by the act of 1874, ch. 364, held to apply where a
traverser was indicted prior to its adoption, the affidavit for removal being made
after the amendment went into effect. Smith v. State, 44 Md. 533.

The act of 1821, ch. 244, directing the removal of criminal cases from Baltimore
city to Baltimore county and from Baltimore county to Baltimore city, held in-
valid under this section. Intent of this section. State v. Dashiell, 6 H. & J. 269.

Where an offence may be punishable by death, either of the parties to the indict-
ment is entitled to a removal as a matter of right; appeal. Where, however, the
offence is not punishable by death, the right to a removal only exists where the
trial court determines in its discretion that the suggestion is true or that there is
reasonable ground for same; appeal; when only action of lower court will be re-
versed. Tidewater Port. Cement Co. v. State, 122 Md. 98.

Generally.

An appeal lies from the action of the court in striking out a judgment solely
upon the ground that the court had no jurisdiction, although the motion is made
during the term at which the judgment was rendered. This section, as it stood
before the amendment of 1874, ch. 364, dealt with. Kimball v. Harman, 34 Md. 403.

The amendment to this section proposed by the act of 1874, ch. 364, and the
fact that said act was not set out verbatim on the journals, referred to in uphold-
ing an amendment to art. 7, sec. 1—see notes thereto and to art. 14, sec. 1. Worman
v. Hagan, 78 Md. 164.

This section referred to in deciding that there was no error in trying a traverser
in the petit jury room instead of the court room. Dutton v. State, 123 Md. 388.

This section referred to in dealing with art. 4, sec. 39—see notes thereto. City
Passenger Ry. Co. v. Nugent, 86 Md. 360.

See art. 4, sec. 39; art. 15, sec. 6, and notes to art. 4, sec. 7.

See art. 75, sec. 109, et seq., An. Code.

See arts. 5 and 20 of the Declaration of Rights.

Sec. 9. The Judge or Judges of any Court may appoint such officers for
their respective Courts as may be found necessary; and such officers of the
Courts in the City of Baltimore shall be appointed by the Judges of the