(107 A.) necessarily withdrawn when the wall was taken down, the pipe itself was disconnected. It was not restored to its former position after the wall was rebuilt, and for that reason the appellant brought this suit against the appellee, as lessor, alleging in the declaration as the ground of liability that the defendant caused the pipe in question to be disconnected from its premises and failed or refused to reconnect it, thereby depriving the plaintiff of its right under the lease to discharge its shavings through the pipe and subjecting it to great loss in its business. The trial court ruled that there was no evidence in the case legally sufficient to sustain the action, and accordingly instructed the jury to find for the defendant. From the judgment entered on the verdict thus directed, the plaintiff has appealed. might have been made for the support of the pipe by a trestle which would not rest on the wall and that, if this had been done, even a temporary disarrangement of the pipe could have been avoided. But it was not the duty of the appellee to make such a provision, and, while the appellant had ample notice that the wall was dangerously out of repair and would have to be removed, it took no action to obviate the necessity of disconnecting the pipe by substituting another support for the one which was required to be withdrawn. The testimony shows without dispute that the appellant had no communication with the appellee in reference to the removal of the wall and pipe until two months or more after both had been taken down, but that, before they were removed the appellant's president, Mr. Steiner, was in conference on the subject with Mr. Murphy, the vice president of the Union Box Company, already referred to as the lessee of the building of which the wall formed a part and with which the pipe was connected. Mr. Steiner testified that Mr. Murphy told him about the condition of the wall and the necessity for removing it and the pipe, but said that the pipe would be reconnected after the wall was rebuilt. It was not testified, however, that any representative of the appellee company made or authorized any promise that the pipe would be restored by its action or at its expense. After the wall was reconstructed, Mr. Steiner learned that no provision was being made for reattaching the pipe to the building, and he then wrote a letter to the appellee complaining of that fact. There is no proof that the pipe cannot be connected with the build The only obligation which the appellee assumed under the lease with reference to the shavings pipe was to permit the appellant to connect, maintain, and use it in the position described. There was no agreement on the part of the lessor to keep the pipe or its supports in repair. That was a right which the appellant might have exercised, but it was not a duty which the appellee could be required to perform. Gluck v. Baltimore, 81 Md. 326, 32 Atl. 515, 48 Am. St. Rep. 515; Kirby v. Wylie, 108 Md. 512, 70 Atl. 213, 21 L. R. A. (N. S.) 129, 129 Am. St. Rep. 451; Cramer v. Baugher, 130 Md. 215, 100 Atl. 507. The appellee corporation did in fact make repairs to the extent of rebuilding the condemned wall, but its omission to restore the trestle which had rested on the wall and upon which the pipe depended for support did not violate any right which the appellanting as now constructed, or that the appellant was entitled to assert and enforce. The restoration of the wall could not have been required of the appellee, and it was under no obligation to provide the pipe with another means of support. As the appellant would have had no legal ground of complaint if the wall had not been rebuilt at all, so it has acquired no right of action against the appellee merely because the repairs, while partially made, were not completed by the reinstallation of the pipe in its former position. There is no evidence in the case that the appellee interfered with the right of the appellant to maintain or restore the connection of the shavings pipe with the building into which it was intended to discharge. It was suggested in the testimony that provision has ever proposed or attempted to make the replacement on its own initiative. Its contention is that the appellee is obliged to reestablish the pipe, and this suit is brought on the theory of a failure or refusal to perform that alleged duty. The record before us does not disclose such a liability or present any evidence legally sufficient to sustain the suit. There was consequently no error in the withdrawal of the case from the jury on that ground. In view of this conclusion, it is needless to discuss the rulings on other prayers and on the admissibility of certain evidence reflecting upon the duration of the appellant's tenure and the question of damages. Judgment affirmed, with costs. (135 Md. 77) (No. 39.) FOUNTAIN v. STATE. (Court of Appeals of Maryland. 1919.) 1. CRIMINAL LAW 586, 1151-APPEALCONTINUANCE-DISCRETION OF COURT. Suspension or postponement of a criminal trial is ordinarily within the trial court's discretion, and its ruling will not be disturbed unless plainly required in the interest of justice. 2. CRIMINAL LAW 591- CONTINUANCE MOB VIOLENCE. immediate danger of lynching, he took advantage of an opportunity to escape in the dark through an open window, and was not retaken July 17. until two days later; that the fact of his escape was announced by the court to the jury as a reason for the suspension of the trial until his recapture; and that a reward of $5,000 was offered by the court for the rearrest of the appellant and his safe return to the courtroom. It was at the time of the resumption of the trial on the morning after the recapture of the accused that his motion just referred to was filed. In addition to the allegations already summarized the motion averred that the defendant, "by reason of the interruption of the orderly procedure of the administration of justice due to mob violence actually perpetrated upon him while in the custody of the law and in the actual trial of his case (from which mob violence he attempted to escape by flight because of in. sufficient protection of law), finds himself so prejudiced in the further progress of said case as to be utterly and hopelessly unable to receive a fair and impartial trial by any further action in the present so-called trial and proceeding; and that the same amounts to a denial of due process of law, to a denial of all constitutional guaranty of a fair and impartial trial, or to the constitutional right of a jury trial." It was further alleged that Where a negro being tried for rape was assaulted by a mob, which tried to lynch him while he was being taken from courthouse to jail, but he escaped in resulting confusion and was recaptured within a few days and his trial continued, under protection of state militia, over objection that public feeling prevented a fair trial, held that refusal to grant continuance constituted an abuse of discretion. Appeal from Circuit Court, Talbot County: Wm. H. Adkins and Lewin W. Wickes, Judges. Isaiah Fountain was convicted of rape, and he appeals. Reversed, and new trial awarded. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, and URNER, JJ. Eugene O'Dunne, of Baltimore (James C. Mullikin, of Easton, on the brief), for appellant. the defendant was confronted with the alternative of "being prejudiced before the jury by the announcement made to the jury, by the court, that the defendant had made his Ogle Marbury, Asst. Atty. Gen., and Al- escape from the authorities during the progbert C. Ritchie, Atty. Gen. (Charles J. But-ress of the trial, from which the inference of ler, State's Atty., of Easton, on the brief), for the State. URNER, J. In the course of the trial of the appellant for rape, in the circuit court for Talbot county, he filed a motion for a postponement of the trial on the ground that it could not be fair and impartial under the conditions then existing. The motion alleged and offered to prove, in substance and effect, that when the court adjourned at 10 o'clock at night on the first day of the trial about 2,000 persons were assembled on the courthouse grounds, on which the county jail was also located, and while the appellant was being taken from the courthouse to the jail through the crowd a determined effort, accompanied by personal violence inflicted upon him, was made to take him from the custody of the officers of the law and lynch him, this purpose being openly declared by members of the crowd, some of whom were armed with various weapons and provided with ropes; that the officers attempted to hold the crowd at bay with their pistols as it surged upon the porch of the jail while the appellant was pushed through the outer door of the building, and that, prompted by his fear and the guilt as a cause for flight may be drawn by the jury," or of "rebutting said presumption by proof of flight from mob violence perpetrated upon him in the courthouse grounds within five minutes of the adjournment of court and while the jury was still in the box," but that "by adopting the latter course he becomes prejudiced in the trial of said case by injecting into the minds of the jury the intensity of the feeling of the populace surrounding the courthouse to such an extent that the jury itself becomes thereby intimidated and unable fully and freely to do its duty in the premises, as it may see it, solely from the standpoint of the law and the evidence given under oath in open court." The application of the defendant for a stay of the proceedings was refused, and the trial was continued, resulting in his conviction and a sentence of death. The record contains a certificate of the trial court, signed at the instance of the defendant's counsel, as follows: "After the case of State v. Isaiah Fountain had been assigned for trial on Easter Monday, April 21, 1919, the court was desirous of knowing whether the case was to be tried on that day, so as to make its arrangements for not. (107 A.) other work in the circuit, or for sitting in the siding judge invited those who had been sworn Court of Appeals, and to that end caused in- in as deputy sheriffs and others who desired quiry to be made informally of Mr. O'Dunne to be sworn in as deputy sheriffs to report to as to whether the case was to be removed or the courtroom across the open green; that he had further matters to communicate to them. The courtroom was quickly filled, whereupon the presiding judge stated to those assembled that he desired to take them into his confidence to say that he had just been in communication with the chief executive of the state, and that he was reliably informed that the present crowd in Easton was likely to be augmented that night by 3,000 or 4,000 additional persons, who it was expected would arrive in Easton some time that night. He asked those assembled whether they felt able and were disposed to take care of the situation in Easton that night, or whether they would prefer that he avail himself of the offer of the Governor to send the "In response to a long-distance telephone call, Mr. O'Dunne came to Easton on Friday night, April 18th, and stated to the presiding judge of the court that he brought with him an affidavit of removal, signed by Isaiah Fountain and sworn to by him, for the purpose of asking a removal. Mr. O'Dunne suggested that the case be removed to Baltimore city, but the court declined to entertain the suggestion of removal to Baltimore city, and said that in the event of the case being removed it would not be sent out of the circuit, whereupon Mr. O'Dunne stated that he would therefore not file the affidavit of removal. "The circumstances under which the $5,000 | constituted legal authority of the state, to wit, reward was offered were brought about by the a company of uniformed state militia, augmentescape of the defendant a few minutes after ed by an auxiliary force of policemen from 10 p. m. on the night of April 21, 1919, the Baltimore city, who could arrive there in macourt having held a night session until 10 chines during the night. The matter being o'clock, and when the prisoner was removed further discussed by various speakers, the sense from the courthouse room to the jail building of those assembled finally was that the court in the courthouse square, a large concourse of was asked to use its judgment for preserving people had assembled on the courthouse grounds, law and order by the use of such power and and certain threats of violence towards the pris-authority as it deemed expedient, including the oner were made by some of those assembled use of the state militia and an auxiliary pothere, which resulted in his then and there escaping from the crowd, and from the officers who had him in custody. The next morning the presiding judge of the court in the courtroom commented upon the disgraceful proceeding resulting in the escape of the prisoner, and offered a reward on behalf of the citizens of Talbot county of $5,000 for his capture and return unharmed to the custody of the sheriff of Talbot county, and suggested to the sheriff in open court the swearing in of all assembled who would volunteer as deputy sheriffs for that purpose. Several hundred persons volunteered and were sworn in as deputy sheriffs, including Mr. O'Dunne, the prisoner's counsel. "(In the afternoon before the prisoner was returned and before the occurrences hereinafter set out, the jury had retired with the bailiffs to another part of the town, where they ate and slept, out of sight and hearing of the occurrences now about to be stated.) lice force from Baltimore city, with the result that between midnight and dawn a company of uniformed state militia arrived at the courthouse, and was augmented by some 25 members of the Baltimore police force, who came down by machine, in addition to the 15 members already there. On the arrival of the state militia, they were stationed to guard the approaches to the courthouse and the jail, and were placed as pickets on the inside of the iron rail fence around the courthouse plaza, and with drawn bayonets permitted no one to enter the courthouse square except those having official business with the court, and the several hundred persons who had been sworn in as deputy sheriffs two days before, and other persons who were properly vouched for. The court of its own motion inserts the following in brackets: [The jury were absent from the courthouse at the place where they ate and slept, in another part of the town, at the time of the return of the prisoner after the capture and at the time of the addresses to the crowd and the conference in the courtroom, last above referred to.] From the adjournment, 10 p. m. Monday night, to 9:30 a. m. Thursday, April 24th, the hour set for resuming the further trial of the case, the jury were held together in charge of bailiffs with the use of the courthouse room and the grand jury room, and they were escorted under proper custody through the town of Easton to and from the place where their meals were served, and where they slept, and on April 24, 1919, shortly before the hour set for the opening of court, they were properly escorted in charge of the regular bailiffs through the town of Easton to the courtroom, which necessitated their passing through the picket line of state militia guarding the courthouse square. "The prisoner was reported captured late in the afternoon of April 23d at a point in the state of Delaware, and as news of his capture reached Easton a large crowd of people assembled at the courthouse square between the courthouse door and the jail door, both located on the same plot of ground, inclosed by an iron railing fence. As the news reached Easton that the defendant was about to be brought back to the jail by his captors in an automobile, addresses were made to the assembled crowd from the porch of the jail, in which the populace was exhorted to be peaceful and law-abiding and let the law takes its course in an orderly fashion. Chief Judge Wm. H. Adkins addressed the crowd along this line, also the mayor of Easton, W. Mason Sheehan, and Eugene O'Dunne, the prisoner's counsel, at the close of whose remarks the prisoner arrived, and was safely conducted into the jail and back "(At the resumption of the trial the jury were into the custody of the sheriff without any in- especially cautioned by the court against perterference on the part of the crowd. The pre-mitting themselves to be prejudiced against the prisoner on account of his escape after the promptness, the attempt to forestall by lynching the verdict of the jury and a judicial sentence, the flight of the defendant to escape immediate death at the hands of the mob to insure his safety when recaptured, eviand the unusual measures taken by the court dencing the belief of the judges as to the extreme gravity of the emergency with which they were confronted, combined to create an atmosphere and environment incompatible with the right of the accused to a fair and impartial trial. According to the general rule, the suspension or postponement of a trial is recognized as being within the discretion of the trial court, and its ruling on a question of that nature will not be disturbed on appeal unless such action is plainly required in the interests of justice. In 16 Corpus Juris, p. 484, a discussion of the law relating to applications for continuances in criminal cases, on the ground of public excitement and prejudice, includes the following statement: "In any event such excitement must be such that its natural tendency would be to intimidate or swerve the jury; and as the court in which the case is pending can much better determine the propriety of a postponement on this ground strong showing to induce the upper court to than can the appellate court, it requires a very interfere." There can be no doubt that the court below made earnest efforts to protect the de fendant's right to a fair trial, but the con The appeal in this case presents a question of vital importance in the administration of justice. It is concerned with the right of a person charged with crime to have the question of his guilt or innocence determined by a fair and impartial trial according to law. This right is absolute and fundamental. It rests upon the clearest and strongest principles of justice, and it is safeguarded in the most imperative terms by constitutional provisions which directly declare the will and mandate of the people. The issue tried before the jury in this case was whether the prisoner at the bar, who is a colored man, was in fact the negro who committed the rape charged in the indictment. There was no question that the unfortunate girl who testified as prosecuting witness had been brutally outraged, but the defense was that the accused was not the per-ditions with which the court had to deal petrator of the horrible crime, and that he was in reality a number of miles distant from the scene of the assault at the time it occurred. It was his undoubted right to raise such an issue of fact and to have it determined by the verdict of a jury under circumstances which would enable it to exercise its independent judgment. He was entitled to have the verdict represent solely the effect of the evidence, and not the influence of popular sentiment. In order that the defense interposed might be impartially considered, it was necessary that the jurors should have the opportunity to calmly weigh the evidence without having their minds distracted and dominated by undue manifestations of public hostility against the prisoner. [1, 2] The conditions under which the appellant was tried were such as to make it almost impossible for the issue upon which his life depended to be impartially considered and decided by the jury. It is in the highest degree improbable that the jury as a whole could have kept its judgment free from the influence of the demonstrations made against the accused in the immediate neighborhood of the court in which the trial was being conducted. The presence of a large and menacing crowd, determined that the prisoner shoud die, and unwilling to await the orderly processes of the law, which appear to have rendered such a trial at that time and place impracticable. In such an extraordinary situation as that in which the lower court was placed in this case, and with such vital issues involved, its ruling upon the application to have the trial deferred could not properly be held to be so far discretionary as to be beyond the scope of appellate review. The argument on behalf of the state proceeded in part upon the theory that the jury is not shown by the record to have been fully cognizant of the occurrences and conditions to which the defendant's motion refers. It is difficult to imagine that the jurors could have remained in ignorance of the presence, temper, and conduct of the crowd on the courthouse grounds through which they passed repeatedly on their way to and from the sessions of the court. But it affirmatively appears from the record that the court informed the jury of the flight of the prisoner to escape the violence of the crowd. As we understand the record, it shows also that the comments of the court "upon the disgraceful proceeding resulting in the escape of the prisoner," and its offer of a reward of $5,000 for his recapture and safe return, and its suggestion to the sheriff as to "the swearing in of all assembled who would volunteer as deputy sheriffs for that purpose" were made (107 A.) of the court, narrating with perfect candor | any place within their circuit and providing for and fairness the incidents which impeded issuing process to other counties, a suit to reand disturbed the trial, furnishes ample and strain a nuisance causing irreparable injury to compelling reasons for our conclusion that plaintiff's land may be brought in the county the prisoner did not have a fair trial, and where the land is situated and the nuisance that his motion for a temporary stay of the committed, though none of the defendants reproceeding should have been granted. While we should be entirely satisfied to rest our decision simply upon the elementary rule of right and justice which the appellant has invoked, there are adjudications in other states which fully support the conclusion we have reached. State v. Weldon, 91 S. E. 29, 74 S. E. 43, 39 L. R. A. (N. S.) 667, Ann. Cas. 1913E, 801; Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758; Frederickson v. State, 44 Tex. Cr. R. 288, 70 S. W. 754; Collier v. State, 115 Ga. 803, 42 S. E. 226; State v. Wilcox, 131 N. C. 707, 42 S. E. 536; People v. Fleming, 166 Cal. 357, 136 Pac. 291, Ann. Cas. 1915B, 881; State v. Manns, 48 W. Va. 480, 37 S. E. 613; Capps v. State, 109 Ark. 193, 159 S. W. 193, 46 L. R. A. (N. S.) 741, Ann. Cas. 1915C, 957; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29. side there. 2. INJUNCTION 77(1)—AGAINST CITY—AUTHORIZED ACT-NUISANCE. While as a general rule a city will not be enjoined from doing an authorized act, it must perform such act with regard to the private rights of others, and, if it thereby commits a nuisance injurious to another, it may be restrained. In a suit to restrain the conduct of a lawIt is not our duty or right to pass upon ful business as a nuisance, the courts will go no the weight of the evidence and to express an further than absolutely necessary to protect the opinion as to its sufficiency to support the rights of the parties injured thereby, and will verdict actually rendered. That was a ques-permit the business to be continued, if possible, tion which the appellant was entitled to have in a manner which will avoid the injury. decided by a jury exempt from such influ- 5. INJUNCTION ~118(5), 129(1)—PRAYER FOR ence as those which operated in this case, RELIEF-PROSPECTIVE NUISANCE-DISMISand by which any jury of ordinary human sensibilities would have been practically certain to have been affected prejudicially to the accused. It is natural that popular wrath and indignation should be aroused by such an atrocious offense as this record discloses. But the identification and punishment of the criminal must be left to the careful and regular processes of the law, however deep and just may be the public sense of horror at the crime. The law does not tolerate any interference with the right of the humblest individual to be accorded equal and exact justice, and, when charged with crime, to have the question of his guilt or innocence fairly and impartially determined. It is of the highest concern to the people and courts alike that this vital and sacred right shall be preserved inviolate. Judgment reversed, and new trial awarded. (135 Md. 56) MAYOR AND CITY COUNCIL OF BALTI- 1. VENUE -5(5) SANCE. 1919.) June 25, SUIT TO ENJOIN NUI In view of Code, art. 16, §§ 86, 189, authorizing circuit judges to grant injunctions at SAL. In a suit to restrain the proposed disposal of garbage by the establishment of a pig farm adjacent to the farms of plaintiffs, a prayer for relief, asking that defendants be restrained from hauling the garbage to the farm, reducing it thereon, establishing the piggery, and from erecting a temporary reduction plant, is too broad and general, and the bill should be dismissed without prejudice to a future application if the proposed use of the property results in damage. 6. MUNICIPAL CORPORATIONS 736 — LIA BILITY FOR TORTS-DISPOSAL OF GARBAGE- A city which disposes of its garbage or op- ARABLE DAMAGE. 118(4)-COMPLAINT-IRREP An allegation in a bill for injunction that irreparable damage will ensue is insufficient, unless the facts stated satisfy the court that the apprehension of irreparable damage is well founded. Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge. "To be officially reported." Suit by Augustus J. Sackett and others against the Mayor and City Council of Baltimore and others. From an order overruling defendants' demurrers to the bill, de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |