Corpus Juris: Being a Complete and Systematic Statement of the Whole Body of ...

vision an offender is to be tried in the district where he is apprehended, unless he is taken into custody while at sea, in which case he is to be tried in the district into which he is first brought." But to be "brought" into a district, within the meaning of the statute, first one must be apprehended; it is not enough that he merely "arrive" in the district.

[§ 300] 41. Offenses Committed While Personally Absent; Principal and Accessary-a. In General. The presence of the offender within the county where a crime is committed is not always essential, but some portion of the act, or of the omission to act, must have taken effect therein."

Commission of crime through innocent agent. Where a person procures the commission of a crime in one county through the agency of an innocent person, he is a principal and indictable in the county where the crime was committed, although he was never in such county.10 And the same is true where a person in one state procures the commission of a crime in another state through an innocent agent.11 This doctrine has been applied, for example, to (U. S.) 486, 22 L. ed. 67; U. S. v. | Jackalow, 1 Black (U. S.) 484, 17 L. ed. 225; Ú. S. v. Anderson, 24 F. Cas. No. 14,448, 17 Blatchf. 238; U. S. v. Baker, 24 F. Cas. No. 14,501, 5 Blatchf. 6; U. S. v. Bird, 24 F. Cas. No. 14,597, 1 Sprague 299; In re Charge to Grand Jury, 30 F. Cas. No. 18,274, 2 Sprague 292; In re Charge to Grand Jury, 30 F. Cas. No. 18,277, 2 Sprague 285. See also supra §

223.

[a] The words "out of the jurisdiction of any particular state," in the act of April 30, 1790, c 36 § 8, must be construed to mean "out of the jurisdiction of any particular state of the United States." U. S. v. Pirates, 5 Wheat. (U. S.) 184, 5 L. ed. 64.

7. Kerr v. Shine, 136 Fed. 61, 69 CCA 69.

[a] Cases construing statute.-(1) In U. S. v. Thompson, 28 F. Cas. No. 16,492, 1 Sumn. 168, 170, Judge Story, without discussing the meaning of the word "brought," held that the provision of the crimes act is in the alternative, and that therefore the crime was cognizable in either district, and he observed: "There is wisdom in the provision; for otherwise, if a ship should, by stress of weather, be driven to take shelter tempoarily in any port of the Union, however distant from her home port, the master and all the crew, as well as the ship, might be detained, and the trial be had far from the port to which she belonged, or to which she was destined. And if the offender should escape into another District, or voluntarily depart from that, into which he was first brought, he would, pon an arrest, be necessarily required to be sent back for trial to the latter, Now, there is no peculiar propriety, as to crimes committed on the high seas, in assigning one District rather than another for the place of trial, except what arises from general convenience; and the present alternative provision is well adapted to this purpose." To same effect U. S. v. Baker, 24 F. Cas. No. 14,501, 5 Blatchf. 6. But compare remarks of Sprague, J., in U. S. v. Bird, 24 F. Cas. No. 14,597. 1 Sprague 299 [rev 3 Wheat. 336, 4 L. ed, 4041. (2) In ex p. Bollman, 4 Cranch (U. S.) 75, 136, 2 L. ed. 554. Marshall, C. J., expressed his understanding of the purport of the act of 1790 by saying that the statute "is understood to apply only to offences committed on the high seas, or in any river, haven, basin or bay, not within the jurisdiction of any particular state. In those cases, there is no court which has

uttering forged paper;12 to sending a letter containing a libel,13 or to sending a threatening letter;1 to larceny; 15 to obtaining property or money by false pretenses;16 to abandonment and nonsupport of wife or child;17 to assault or homicide by administering poison;18 to procuring an abortion by administering a drug;19 etc. If a person stands in one county, and by throwing or shooting across the line assaults or kills a person in another, he is indictable for the homicide or assault in the latter.20

[§ 301] b. Principals and Accessaries. If the accessorial acts and the felony are both committed in the same county, the accessary is of course liable in that county; but at common law, if the accessorial acts were committed in a county other than that where the felony was committed, the accessary could not be tried in either county and was therefore not punishable.21 This defect of the common law was changed in the year 1549 by a statute which provided that the accessary should be indictable and triable in the county in which the accessorial acts were committed.22 And in the United v. State, 32 Tex. Cr. 219, 22 SW 680. See supra § 209.

particular cognizance of the crime, and therefore the place in which the criminal shall be apprehended, or, if he be apprehended, where no court has exclusive jurisdiction, that to which he shall be first brought, is substituted for the place in which the offence was committed."

8. Kerr v. Shine, 136 Fed. 61, 69 CCA 69.

[a] Illustration. Thus where an offense was committed on the high seas, and the offender was not taken into custody until he was found and apprehended in one of the districts of California, he must be tried in that district, although the vessel on which the offense was committed had previously touched at Hawaii, and a complaint was filed and a warrant of arrest-which was returned unexecuted because of the offender's departure from the district of Hawaii before its attempted service-was issued there. Kerr v. Shine, 136 Fed. 61, 69 CCA 69.

9. State v. Dvoracek, 140 Iowa 266, 118 NW 399; State v. Mispagel, 207 Mo. 557, 106 SW 513; State v. Bailey, 50 Oh. St. 636, 36 NE 233; Norris v. State, 25 Oh. St. 217, 18 AmR 291.

[a] The violation of an ordinance may be committed by one not present in the city. Tutt v. Greenville, 142 Ky. 536, 134 SW 890, 33 LRANS 331. 10. Ala.-Bishop v. State, 30 Ala.

34.

N. Y.-Peo. v. Rathburn, 21 Wend. 50); Peo. v. Adams, 3 Den. 190, 45 AmD 468 [aff 1 N. Y. 173].

Or. State v. Barnett, 15 Or. 77, 14 P 737

Tex.-Sikes v. State, (Cr.) 28 SW

688.

Eng. Reg. v. Michael, 9 C. & P. 356, 38 ECL 213; Anonymous, Kel. C. C. 53, 84 Reprint 1079; 1 Hale P. C. pp 430, 431, 615, 617.

And see supra §§ 108, 198.

[a] Securing release of prisoner on forged pardon.-Where accused acted through an innocent agent in having one convicted of felony released from the penitentiary upon a forged pardon which pardon was used in C county where the convicted person was confined, the crime of being an accessary after the fact was held to be triable in such county. Dent v. State, 43 Tex. Cr. 126, 65 SW 627.

11. State v. Chapin, 17 Ark. 565, 65 AmD 452; Peo. v. Adams, 3 Den. (N. Y.) 190, 45 AmD 468 [aff 1 N. Y. 173]. See supra § 198.

12. Bishop v. State, 30 Ala. 34; State v. Hudson. 13 Mont. 112, 32 P 413. 19 LRA 775; Peo. v. Rathbun, 21 Wend. (N. Y.) 509; Dent v. State, 43 Tex. Cr. 126, 65 SW 627; Strang

13. Griffin v. State, 26 Ga. 493; Com. v. Blanding, 3 Pick. (Mass.) 304, 15 AmD 214. See supra § 212. 14.

Rex v. Girdwood, 1 Leach C. C. 169; 1 Chitty Cr. L. p 191; 2 East P. C. p 1120. But see Landa v. State, 26 Tex. A. 580, 10 SW 218 (holding that the offense of sending a threatening letter, with intent to extort money from the addressee. was complete and punishable in the county in which the letter was mailed). And see supra § 199.

15. State v. Barnett, 15 Or. 77, 14 P 737.

16. State v. Chapin, 17 Ark. 561, 65 AmD 452; Johns v. State, 19 Ind. 421, 81 AmD 374; Peo. v. Adams, 3 Den. 190, 45 AmD 468 [aff 1 N. Y. 173]. Peo. v. Rathbun, 21 Wend. (N. Y.) 509. And see supra § 208. 17. State v. Dvoracek, 140 Iowa 266, 118 NW 399. And see supra §

263.

18. Anonymous, Kel. C. C. 53, 84 Reprint 1079. See also Robbins v. State, 8 Oh. St. 131 (holding, where the poison was given to the deceased in one county and taken by her in another, that accused could be prosecuted in the latter).

19. State v. Morow, 40 S. C. 221, 18 SE 853.

20. U. S. v. Davis, 25 F. Cas. No. 14,932, 2 Sumn. 482; Simpson v. State, 92 Ga. 41, 17 SE 984, 44 AmSR 75. 22 LRA 248; State v. Hall. 114 N. C. 909, 19 SE 602, 41 AmSR 822, 28 LRA 59; Rex v. Coombes, 1 Leach C. C. 432; 1 East P. C. p 367; 1 Hale P. C. p 475. And see supra § 210. 21. State v. Moore, 26 N. H. 448, 59 AmD 354.

[a] Mr. East, however, was of the opinion that "at common law the coroner might upon view of the body in the county where the fact happened inquire of all accessaries or procurers, though in another county." 1 East P. C. 362.

22. St. 2 & 3 Edw. VI c 24 § 4. which provided: "Where any murder or felony hereafter shall be committed and done in one county, and another person or more shall be accessary or accessaries in any manner of wise to any such murder or felony in any other county, that then an indictment found or taken against such accessary or accessaries upon the circumstance of such matter before the justices of the peace, or other justices or commissioners, to enquire of felonies in the county where such of fences of accessary or accessaries in any manner of wise shall be committed or done, shall be as good and ef

States this statute is regarded as a part of the common law, or similar statutes have been enacted.28 But under such statutes the accessary still cannot be indicted and tried in the county in which the felony alone was committed.24 In some jurisdictions, however, the statutes provide for the indictment and trial of the accessary in the county where the felony was committed;25 in others, either in the county where it was committed or in the one where he became an accessary.26 . So it has been held that, where a statute provides that an accessary before the fact may be prosecuted and convicted as for a substantive felony, whether the principal has or has not been convicted, his crime is cognizable in any court having jurisdiction of the principal, so that an accessary who in one county procures a crime to be committed in another is triable in the latter.27 And, under a statute providing that "when an offense is committed partly in one county and partly in another, or the acts or effects thereof constituting or requisite to the consummation of the

fectual in the law, as if the said principal offence had been committed or done in the same county where the same indictment against such accessary shall be found."

23. Cal.-Peo. v. Stakem, 40 Cal. 599; Peo. v. Hodges, 27 Cal. 340. Ky. Tully v. Com., 13 Bush 142. La-State v. Kinchen, 126 La. 39, 44, 52 S 185 [cit Cyc].

Nev.-State v. Hamilton, 13 Nev. 386; State v. Chapman, 6 Nev. 320. N. J.-State v. Wyckoff, 31 N. J. L. 65.

N. Y.-Peo. v. Hall, 57 HowPr 342; Baron v. Peo.. 1 Park. Cr. 246.

W. Va.-State v. Ellison, 49 W. Va. 70, 38 SE 574.

[a] Letters.-An accessary who writes letters for the purpose of aiding in the uttering of a forged check may be prosecuted in the county in which such letters were received and had effect, and in which the forged check was uttered, although they were written elsewhere. Com. v. Pettes, 114 Mass. 307.

24. Peo. v. Stakem, 40 Cal. 599; Peo. v. Hodges, 27 Cal. 340; Tully v. Com., 13 Bush (Ky.) 142 (accessary after the fact); Peo. V. Hall, 57 HowPr (N. Y.) 342, 347 (where the court said: "Our statute on the subject is that the accessary may be indicted in the county where his offense was committed,' etc. This, after all, is but a reaffirmance of the old English statute above referred to and in force at the time of the revolution. It is urged that the word 'may,' in our statute. is not mandatory-is simply permissive and was intended only as enlarging the remedy or power to punish an accessary. But this view does not help the prosecution here, as independent of this statute no authority can be found for indicting an accessary in any other than the county where the offense of such accessary was committed"); Baron v. Peo., 1 Park. Cr. (N. Y.) 246. 25. Com. v. Pettes, 114 Mass. 307. 26. State v. Moore, 26 N. H. 448, 59 AmD 354.

27. Ala.-Scully v. State, 39 Ala. 240.

Nev.-State v. Chapman, 6 Nev. 320 (where the accessarial acts were committed in another state).

N. Y.-Peo. v. Winant, 24 Misc. 361, 53 NYS 695; Peo. v. Wiley, 20 NYS

445.

Okl.-Pearce v. Terr., 11 Okl. 438, 68 P 504.

Tenn.-Edge V. State, 117 Tenn. 405, 99 SW 1098, 10 AnnCas 876; State v. Ayers, 8 Baxt. 96.

Tex.-Fondren v. State, (Cr.) 169 SW 411; Carlisle v. State, 31 Tex. Cr. 537. 21 SW 358.

W. Va.-State v. Ellison, 49 W. Va. 70, 38 SE 574.

[16 C. J.-14]

[302] B. Change of Venue-1. Right to Change —a. Right of Accused. At common law, when a fair and impartial trial could not be had in the county where the crime was committed, and the indictment had been removed into the king's bench by certiorari, that court could on application of accused change the venue to another county.30 And in this country the great weight of authority supports the view that courts, which by statute or custom possess a jurisdiction like that of the king's bench before our Revolution, have the right to change the place of trial, when justice requires it, to a county. where an impartial trial may be had.31 There are au101 Reprint 507.

[a] In Kentucky under St. (1903) § 1128, providing that in all felonies accessaries before the fact shall be liable to the same punishment as principals, and may be prosecuted jointly with the principals, or severally, although the principals are not tried, an accessary before the fact to a murder may be prosecuted in the county in which decedent died, although the mortal wound was inflicted in another. Hargis v. Parker, 85 SW 704, 27 KyL 441, 69 LRA 270.

[b] In Pennsylvania the proper venue for the prosecution of an accessary to the crime of abortion is in the county in which the abortion was committed, although the acts of the accessary were actually performed in another county. Com. v. Mentzinger, 14 Pa. Dist. 531.

28.

Com. v. Parker, 108 Ky. 673, 57 SW 484, 22 KyL 368; Tully v. Com., 13 Bush (Ky.) 142 (holding however, that the statute did not apply, where it appeared that the acts of the accessary in that county were not requisite to the consummation of the offense); State v. Ayres, 8 Baxt. (Tenn.) 96, 98.

29. Ark. State v. Chapin, 17 Ark. 565, 65 AmD 452. Conn.-Barkhamsted v. Parsons, 3

Conn. 1.

D. C.-U. S. v. King, 20 D. C. 404. Ga.-Duckett v. State, 93 Ga. 415, 21 SE 73.

Pa. Com. v. Gillespie, 7 Serg. & R. 469, 10 AmD 475.

Eng.-Rex v. Johnson, 6 East 583, 102 Reprint 1412; Rex v. Brisac, 4 East 164, 102 Reprint 792, 8 ERC 138.

See also supra § 198.

30. 3 Blackstone Comm. pp 294, 350; 1 Chitty Cr. L. p 201; Roscoe Ev. P 241. And see Rex v. Holden, 5 B. & Ad. 347, 27 ECL 151, 110 Reprint_819; Rex v. Hunt, 3 B. & Ald. 444, 5 ECL 259, 106 Reprint 725, 2 Chit. 130, 18 ECL 547; Rex v. Harris, 3 Burr. 1330, 97 Reprint 858, W. Bl. 378, 96 Reprint 213; Rex v. Nottingham, 4 East 208, 102 Reprint 810; Reg. v. Palmer, 5 E. & B. 1024, 85 ECL 1024, 85 ECL 1024, 119 Reprint 762; Reg. v. Wilts County, 6 Mod. 307, 87 Reprint 1046; Queen v. Conway, 7 Ir. C. L 507.

In Reg. v. Barrett, Ir. R. 4 C. L. 285, the opinion fully reviews the authorities and concludes that they "show that the jurisdiction to change the place of trial in cases of felony does exist."

"This would be an anomalous case in the law of England," if the court of king's bench did not have power to order a cause removed for trial to a county where a disinterested jury might be had. Rex v. Cumberland County, 6 T. R. 194, 195,

[a] Lord Mansfield said: "The law is clear and uniform, as far back as it can be traced. So, in parts of England itself where an impartial trial cannot be had in the proper county, it shall be tried in the next." Rex v. Cowle, 2 Burr. 834, 859, 97 Reprint 587.

[b] Necessity for the change.The English cases intimate very strongly that the change of venue is granted in case of felony only when it appears to be absolutely necessary, and that changes of venue are not to be encouraged. Rex v. Holden, 5 B. & Ad. 347, 27 ECL 151, 110 Reprint 819; Rex v. Penprase, 4 B. & Ad. 573, 24 ECL 252, 110 Reprint 571; Rex v. Harris, 3 Burr. 1330, 97 Reprint 858, W. Bl. 378, 96 Reprint 213; Rex v. King, 2 Chit. 217, 18 ECL 599; Reg. v. Ruxton, 11 Wkly. Rep. 209.

31. Mass.-Crocker V. Justices Super. Ct., 208 Mass. 162, 94 NE 369, 21 AnnCas 1061.

Mich.-Peo. v. Swift, 172 Mich. 473, 138 NW 662.

Minn.-State v. Miller, 15 Minn.

344.

N. H.-State v. Albee, 61 N. H. 423, 60 AmR 325 [overr State V. Sawyer, 56 N. H. 175, which was a per curiam opinion].

N. Y.-Peo. v. McLaughlin, 150 N. Y. 365, 44 NE 1017; Jones v. Peo., 79 N. Y. 45 (where it was said that the power was inherited from the English court of king's bench); Peo. v. Jackson, 114 App. Div. 697, 100 NYS 126, 20 N. Y. Cr. 347; Peo. v. Bodine, 7 Hill 147; Peo. v. Webb, 1 Hill 179; Peo. v. Vermilyea, 7 Cow. 108.

N. D.-Barry v. Traux, 13 N. D. 131, 99 NW 769, 112 AmSR 662, 65 LRA 762, 3 AnnCas 191.

Pa.-Com. v. Balph, 111 Pa. 365, 3 A 220.

Tenn.-Bob, a Slave, v. State, 2 Yerg. 173; Kendrick v. State, Cooke 474.

Tex.-Dis. op. Ex p. Martinez, 66 Tex. Cr. 1, 145 SW 959, 1021 [cit Cyc].

[a] Reason for rule.-"If the matter is considered on principle and apart from authority, the same conclusion is reached. It is inconceivable that the people who had inherited the deeply cherished and hardly won principles of English liberty and who depleted their resources in a long and bloody war to maintain their rights of fréemen, should have intended to deprive their courts of the power to secure to every citizen an impartial trial before an unprejudiced tribunal. . . . A court of general jurisdiction ought not to be left powerless under the law to do within rea

thorities which seem to be to the contrary, but most of them are to be distinguished as arising under constitutions which have some controlling provision, or under statutes or codes which cover the whole subject matter of change of place of trial in great detail and leave nothing to be governed by the common law 32 A statute conferring on accused the right to a change of venue is not unconstitutional under the provision that he shall have a trial by an impartial jury of the county;33 but the change, as a rule, can be made only with the consent of accused.3 34 The general law providing for a change of venue in criminal cases does not apply to causes pending against persons undergoing sentence of imprisonment in the penitentiary.35 Under some statutes defendant is not entitled to a change of venue in the case of a misdemeanor.36

[303] b. Right of Prosecution. Some cases hold that, under a constitutional provision securing to accused a trial by jury in the county or district in which the crime was committed, the trial cannot be transferred to another county, on motion of the district or prosecuting attorney, over the objection, or without the consent, of accused.37 And the same is true under a constitutional provision that "the right of trial by jury shall be secured to all, and remain inviolate, the right secured being the right to trial by a jury of the vicinage as it existed at common law;38 but, even under such constitutional restrictions, the cases are not uniform, and it is held in several jurisdictions that the legislature is not thereby inhibited from passing a general law allowing a change of venue upon motion of the state.3 39 And where the constitution contains

Mo.-State V. Witherspoon,
231
Mo. 706, 133 SW 323; State v. Bar-
rington, 198 Mo. 23, 95 SW 235 [writ
of error dism 205 U. S. 483, 26 SCt
582, 51 L. ed. 890]; State v. Headrick,
149 Mo. 396, 51 SW 99; State v. Lana-
han, 144 Mo. 31, 45 SW 1090; State
v. Dyer, 139 Mo. 199, 40 SW 768;
State v. Wofford, 119 Mo. 408, 24
SW 1009; State v. Sanders, 106 Mo.
188, 17 SW 223; State v. Daniels, 66
Mo. 192; State v. O'Rourke, 55 Mo.
440; State v. Zeppenfeld, 12 Mo. A.
574.

son all that the conditions of society | Davis v. State, 3 Harr. & J. 154.
and human nature permit to provide
an unprejudiced panel for a jury
trial. Without such a power it might
become impossible to do justice either
to the general public or to the indi-
vidual defendant. Our system of
government has created the execu-
tive, the legislative and the judicial,
as three independent and co-ordinate
departments, and in strong and com-
prehensive language has prohibited
each from attempting to exercise the
functions of either of the others 'to
the end that it may be a government
of laws and not of men.' The courts
of general jurisdiction under such a
Constitution have the inherent power
to do whatever may be done under
the general principles of jurispru-
dence to insure to the citizen a fair
trial, whenever his life, liberty, prop-
erty or character is at stake. The
possession of such power involves its
exercise as a duty whenever public
or private interests require." Crock-
er v. Justices Super. Ct., 208 Mass.
162, 178, 94 NE 369, 21 AnnCas
1061.

[b] In Massachusetts (1) there are dicta in early cases to the effect that such power did not exist. Hawkes v. Kennebeck County, 7 Mass. 461; Lincoln County v. Prince, 2 Mass. 544. (2) The statement that "no power was given to the Court to change the venue to the county where the cause of action happened," was made as to the power of the court of common pleas of that time, a distinctly county court of somewhat limited jurisdiction, and possessing therefore only those functions expressly or by necessary implication granted to it, and did not refer to removal to another county to secure an impartial trial. Cleveland v. Welsh, 4 Mass. 591, 592. (3) These cases must be regarded as overruling whatever there is to the contrary in Shannon v. Smith, 31 Mich. 451.

[c] In Michigan although there is a statute dealing with the subject, the statute is "but declaratory of the common-law power vested in the circuit courts of this State." Peo. v. Peterson, 93 Mich. 27, 30, 52 NW 1039 [foll Glazier v. Ingham Cir. Judge, 153 Mich. 481, 116 NW 1007; Peo. v. Fuhrmann, 103 Mich. 593, 61 NW 865].

32. Ark.-Betts v. Ward, 79 Ark. 146, 95 SW 148.

Cal. Older v. Kern County Super. Ct., 157 Cal. 770, 109 P 478 [rev 10 Cal. A. 564, 102 P 829].

Ill-Miller v. Peo., 230 Ill. 65, 82 NE 521; Adams v. Peo., 12 Ill. A. 380.

Ind. State v. Smith, 55 Ind. 385.
Iowa. Miller v. State, 4 Iowa 505.
Ky.-Lightfoot v. Com., 80 Ky.

516.

Me.-State v. Vannah, 112 Me. 248, 91 A 985. Md.-Price v. State, 8 Gill 295;

N. H.-State v. Albee, 61 N. H.
423, 60 AmR 325.

N. Y.-Peo. v. Harris, 4 Den. 150;
Peo. v. Vermilyea, 7 Cow. 108.
N. D.-State v. Boyd, 26 N. D. 224,
144 NW 232.

Oh.-State v. McGehan, 27 Oh. St. 280; Fike v. State, 25 Oh. Cir. Ct. 554.

Okl.-Stanley v. U. S., 1 Okl. 336, 33 P 1025.

Tex.-Cotton v. State, 32 Tex. 614;
Johnson v. State, 31 Tex. Cr. 456,
20 SW 985.

Vt.-State v. Howard, 31 Vt. 414.
Va.-Com. v. Wildy, 2 Va. Cas. (4)
Va.) 69; Com. v. Rolls, 2 Va. Cas.
(4 Va.) 68; Com. v. Bedinger, 1 Va.
Cas. (3 Va.) 125.

Wis.-State v. Backus, 165 Wis.
179, 161 NW 759; Oborn v. State, 143
Wis. 249, 126 NW 737, 31 LRANS
966; Hanley v. State, 125 Wis. 396,
104 NW 57; French V. State, 93
Wis. 325, 67 NW 706; Boldt v. State,
72 Wis. 7, 38 NW 177; Baker
State, 56 Wis. 568, 14 NW 718.
33. U. S.-Gut V. Minnesota, 9
Wall. 35, 19 L. ed. 573.
Ala.-Bramlett V. State, 31 Ala.

376.

Ark. Dougan v. State, 30 Ark. 41. Fla.-O'Berry v. State, 47 Fla. 75, 36 S 440.

Ill. Weyrich v. Peo., 89 Ill. 90; Bedee v. Peo., 73 Ill. 320; Rafferty v. Peo., 72 I. 37; Perteet v. Peo., 70 Ill. 171; Brennan v. Peo., 15 I. 511; Clark v. Peo.. 2 Ill. 117.

Kan.-State v. Kindig, 55 Kan. 113,
39 P 1028; State v. Knapp, 40 Kan.
148, 19 P 728.

Md. Cochrane v. State, 6 Md. 400.
Minn. State v. Gut, 13 Minn. 341.
Mo.-State v. Dyer, 139 Mo. 199, 40
SW 768.

N. H.-State v. Albee, 61 N. H.
423, 60 AmR 325.

R. I.-Taylor v. Gardiner, 11 R. I.
182.

Tenn.-State v. Denton, 6 Coldw.
539: Dula v. State, 8 Yerg. 511.
Wis.-Wheeler V. State, 24 Wis.

52.

34. U. S.-Gut V. Minnesota,
Wall. 35, 19 L. ed. 573.
Ala.-Bramlett V. State, 31 Ala.
Ark.-Dougan v. State, 30 Ark. 41.
Kan.-State v. Kindig, 55 Kan. 113,
39 P 1028; State v. Knapp, 40 Kan.

376.

148, 19 P 728.

Md. Cochrane v. State, 6 Md. 400.
Minn.-State v. Gut, 13 Minn. 341.
N. H.-State v. Albee, 61 N. H.
423, 60 AmR 325.

Oh.-State v. Arrison, 10 Oh. Dec.
Reprint 379, 20 CincLBull 474.
Tenn.-State v. Denton, 6 Coldw.

539.

Wis.-Wheeler v. State, 24 Wis. 52.
See infra § 303.

35. Golden v. State, 13 Mo. 417.
[a] Convicts in the penitentiary
who are civilly dead for the term of
their sentence are not entitled to a
change of venue in a prosecution dur-
ing such term. Golden v. State, 13
Mo. 417.

36. Washington v. State, 2 Okl. Cr. 428, 101 P 863; Fox v. State, 53 Tex. Cr. 150, 109 SW 370; Henderson v. State, (Tex. Cr.) 39 SW 116; Halsell v. State, 29 Tex. A. 22, 18 SW 418.

[a] In Ohio there is no provision for a change of venue, from the mayor's court, of a misdemeanor. Fike v. State, 25 Oh. Cir. Ct. 554.

37. Ala.-Ex p. Rivers, 40 Ala. 712.

Ark. Osborn v. State, 24 Ark. 629. Cal.-Peo. v. Powell, 87 Cal. 348, 25 P 481, 11 LRA 75.

Kan.-State v. Kindig, 55 Kan. 113, 39 P 1028; State v. Knapp, 40 Kan. 148, 19 P 728; State v. Bunker, 38 Kan. 737, 17 P 651; State v. Potter, 16 Kan. 80.

Mo.-State v. Hatch, 91 Mo. 568, 4 SW 502; State v. McGraw, 87 Mo. 161; Ex p. Slater, 72 Mo. 102.

S. D. In re Nelson, 19 S. D. 214, 102 NW 885.

Tenn.-State v. Denton, 6 Coldw. 539; Kirk v. State, 1 Coldw. 344.

W. Va.-State v. Greer, 22 W. Va.

800.

52.

Wis.-Wheeler v. State, 24 Wis.

[a] In Illinois, under the act authorizing a change of venue in criminal cases, such change can be granted only on the application of defendant. Miller v. Peo., 230 Ill. 65, 82 NE 521.

[b] In Ohio (1) where the constitution confers the right on one accused of crime to be tried where the alleged crime was committed, the state has no right to a change of venue. State v. Arrison, 10 Oh. Dec. (Reprint) 379, 20 CincLBul 474. (2) But it has been stated that the foregoing is true only as to the right of the state to move the cause into another judicial district, and that the state can make a change from one county to another in the same district. State v. Myers, 10 Oh. Dec. (Reprint) 397, 21 CincL Bul 57.

38. Peo. v. Powell,, 87 Cal. 348, 25 P 481, 11 LRA 75.

39. Fla.-Hewitt v. State, 43 Fla. 194. 30 S 795.

Ind.-Welty v. Wa/rd. 164 Ind. 457, 73 NE 889, 3 AnnCa 556, 72 NE 596. Ky-Smith v. Com., 108 Ky. 53, 55 SW 718, 21 KL 1470; Com. v.

no express provision as to the place of trial of an offender,1o or expressly provides that defendant and the state may be granted equal rights as to a change of venue, the court may order a change of venue on application of the prosecution, where it appears that a fair trial cannot be had in the county where accused is indicted; but the power to grant a change of venue on the application of the prosecution should be exercised with great care and deliberation.*2 [304] c. Right of Codefendants. Where several are jointly indicted, a change of venue may be ordered as to one upon his motion, without removing the trial of the others;43 or according to some cases, the court may order a change of venue all.44

as to

Davidson, 91 Ky. 162, 15 SW 53, 12 KyL 767.

Minn.-State v. Miller, 15 Minn. 344; State v. Gut, 13 Minn. 341. N. M.-State v. Holloway, 19 N. M. 528, 146 P 1066, LRA1915F 922.

Oh.-State v. Durflinger, 73 Oh. St. 154. 76 NE 291.

Porto Rico.-Fajardo v. Nussa, 23 Porto Rico 71.

Tex.-Ex p. Cox, 12 Tex. A. 665. [a] In Oklahoma, under the Organic Act 10, providing that any criminal or civil case might be removed on change of venue to another county, and St. (1893) § 5144, prescribing the proceedings for such removal, the removal of a criminal case on application of the territory from one county to another, or from one judicial district to another, was not violative of U. S. Const. Amendm. VI. Mahaffey v. Terr., 11 Okl. 213, 66 P 342.

40. La.-State v. McCoy, 29 La. Ann. 593; State v. Train, 23 La. Ann. 710.

Mich.-Glinnan v. Detroit Recorder's Ct. Judge, 173 Mich. 674, 140 NW 87; Peo. v. Fuhrmann, 103 Mich. 593, 61 NW 865; Peo. v. Peterson, 93 Mich. 27, 52 NW 1039.

N. Y.-Peo. v. Baker, 3 AbbPr 42, 3 Park. Cr. 181; Peo. v. Webb, 1 Hill 179.

N. D.-Zinn v. Morton County Dist. Ct., 17 N. D. 135. 114 NW 472: Barry v. Traux, 13 N. D. 131, 99 NW 769, 112 AmSR 662, 65 LRA 762, 3 AnnCas 191.

Oh-State v. Myers, 10 Oh. Dec. (Reprint) 397, 21 CincLBul 57 [overr State v. Arrison, 10 Oh. Dec. (Reprint) 379, 20 CincLBul 474]. But see supra note 37[b].

Tex-Gregory v. State, (Cr. A.) 37 SW 752; Cox v. State, 8 Tex. A. 254, 34 AmR 746.

[a] In Louisiana (1) the only requirement of Acts (1876) p 150 No. 95, relating to applications by the state for change of venue in criminal cases, is that it shall be established by legal evidence that a fair trial cannot be had in the parish where the indictment is laid. State v. Wheat, 111 La. 860, 35 S 955. (2) This act repealed the former law authorizing prosecuting attorneys and district judges to order a change of venue whenever, in their own judgment, it was necessary in order to secure a fair trial. Brouillette V. Judge Tenth Dist. Ct., 45 La. Ann. 242, 12 S 134.

41. Smith v. Com., 108 Ky. 53, 55 SW 718, 21 KyL 1470.

42, State v. Holloway, 19 N. M. 528, 146 P 1066, LRA1915F 922 [quot Glinnan V. Detroit Recorder's Ct. Judge, 173 Mich. 674, 140 NW 87]; Reg. v. Ponton, 2 CanCrCas 192.

means by which a person charged with a public offense may escape the judgment of a tribunal that is biased and prejudiced against him;18 and as a rule, statutes conferring the right to a change should be construed liberally and, if possible, so as not to defeat the right.49 Such statutes should be interpreted as to both parties alike.50

[§ 306] e. Discretion of Court.51 The defendant in a criminal case has no absolute right to a change of venue.52 Such right depends upon a showing of cause to be made by him,53 and upon compliance with the statutory provisions on the subject.54 In a number of jurisdictions statutes authorizing a change of the place of trial, upon a prescribed showing, have been construed to be mandatory and to entitle the applicant, upon a strict compliance with their provisions, to the change as of right.55 And it has been very generally held that, where the application for a change of venue is based upon the prejudice of the judge, he has no discretion to refuse it;56 but there is authority to the con

43. Shular v. State, 105 Ind. 289, 4 NE 870, 55 AmR 211; State v. Martin, 24 N. C. 101; Brown v. State, 18 Oh. St. 496; Reg. v. Browne, 6 Jur. 168.

44. Peo. v. Baker, 3 AbbPr (N. Y.) 42, 3 Park. Cr. 181.

[a] Especially in cases of local prejudice.-Peo. v. Jackson, 114 App. Div. 697, 100 NYS 126, 20 N. Y. Cr. 347.

45. Woolfolk v. State, 85 Ga. 69, 11 SE 814; Dulany v. State, 45 Md. 99; State v. Dyer, 139 Mo. 199, 40 SW 768.

[a] It is not a right similar to that of a trial by jury but a mere legal right to which a party is entitled under the terms and under the qualifications prescribed in, or reasonably deducible from, the law. Cotton v. State, 32 Tex. 614.

46. Woolfolk v. State, 85 Ga. 69, 11 SE 814; Dulany v. State, 45 Md. 99.

47. Paris V. State. 36 Ala. 232; Peo. v. Fredericks, 106 Cal. 554, 39 P 944; Smith v. Peo., 2 Colo. A. 99, 29 P 924.

[a] Failure to move on second opportunity.-Although an application for a change of venue on the ground of local prejudice has been erroneously denied, yet, if defendant has a second opportunity to urge his motion and fails so to do, he will be deemed to have waived and abandoned his rights in the matter. Peo. v. Fredericks, 106 Cal. 554, 39 P 944; Peo. v. Goldenson, 76 Cal. 328. 19 P 161; Peo. v. Plummer, 9 Cal. 298.

48. Sioux Falls v. Neeb, 20 S. D. 244, 105 NW 735.

49. Ky.-Riggen v. Com., 3 Bush 495.

Md.-Gardner v. State, 25 Md. 146. Or.-Packwood v. State, 24 Or. 261, 33 P 674.

S. D.-Sioux Falls v. Neeb, 20 S. D. 244, 105 NW 735.

Wis.-State v. Sasse, 72 Wis. 3, 38 NW 343.

50. Price V. State, 8 Gill (Md.) 295; Fajardo v. Nussa, 23 Porto Rico 71.

51. Review of discretion see infra XX G.

52. See supra § 305.

53. Glazier v. Ingham Cir. Judge, 153 Mich. 481. 116 NW 1007: Moses V. State. 11 Humphr. (Tenn.) 232; Barnes v. State. 36 Tex. 639; Henderson v. State, (Tex. Cr.) 39 SW 116: Halsell v. State, 29 Tex. A. 22, 18 SW 418.

Grounds for change see infra 307 et seq.

54. See infra § 314 et seq. 55. U. S.-Hendrix V. Peo., 219 U. S. 79, 37 SCt 193, 55 L. ed. 102.

Ark. Whitehead v. State, 121 Ark. 390, 181 SW 154; Dewein v. State, 120 Ark. 302, 179 SW 346; Ford v. State,

98 Ark. 139, 135 SW 821; Edwards v. State, 25 Ark. 444.

Cal.-Peo. v. Hubbard, 22 Cal. 34. Colo.-Smith v. Peo., 2 Colo. A. 99, 29 P 924.

Ill.-Cantwell v. Peo., 138 Ill. 602, 28 NE 964; Rafferty v. Peo., 72_111. 37; Rafferty v. Peo., 66 Ill. 118; Perteet v. Peo., 65 Ill. 230; Brennan v. Peo., 15 Ill. 511; Clark v. Peo., 2 Ill. 117; Peo. v. Knight, 155 Ill. A. 92.

Ind.-Manly v. State, 52 Ind. 215; Redman v. State, 28 Ind. 205; Goldsby v. State, 18 Ind. 147.

Iowa.-State v. Nash, 7 Iowa 347; Cass v. State, 2 Greene 353.

Kan.-Smith v. State, 1 Kan. 365.
La.-State v. Train, 23 La. Ann.

710.

Mo.-State v. Turlington, 102 Mo. 642, 15 SW 141; Manning v. State, 8 Mo. 615; Freleigh v. State, 8 Mo. 606; State v. Thomas, 32 Mo. A. 159.

N. M.-Terr. v. Taylor, 11 N. M. 588, 71 P 489; Terr. v. Kelly, 2 N. M. 292.

Oh.-State v. Shaw, 43 Oh. St. 324, 1 NE 753.

S. D.-State v. Henning, 3 S. D. 492, 54 NW 536.

Tex.-Walker v. State, 42 Tex. 360; Manley v. State, 62 Tex. Cr. 392, 137 SW 1137 (as to members of the military forces of the state who may be indicted for crime).

Wis.-State v. McArthur, 13 Wis.

407.

[a] Magistrate's court.-Under the act of 1896 (22 St. at L. p 12), providing that, whenever accused in a criminal case which is to be tried before a magistrate shall file an affidavit that he does not believe that he can obtain a fair trial, the papers shall be turned over to the nearest magistrate, where a person accused before a magistrate files such an affidavit it is mandatory on the magistrate to grant a change of venue. State v. Conkle, 64 S. C. 371, 42 SE 173.

V. Peo., 57

56. Colo.-Erbaugh Colo. 48, 140 P 188. Ill.- Carrow v. Peo., 113 Ill. 550; Peo. v. Knight, 155 Ill. A. 92.

Ind. Smelzer v. Lockhart. 97 Ind. 315; Duggins v. State, 66 Ind. 350; Manly v. State, 52 Ind. 215; Mershon V. State, 44 Ind. 598; Goldsby V. State, 18 Ind. 147.

Kan.-State v. Grinstead, 10 Kan. A. 78, 61 P 976.

Mo.-State v. Witherspoon, 231 Mo. 706, 133 SW 323; State v. Spivey, 191 Mo. 87, 90 SW 81; State v. Thomas, 32 Mo. A. 159. Contra State v. Sayers, 58 Mo. 585 (under the act of 1873).

N. D.-State v. Boyd, 26 N. D. 224, 144 NW 232: Waterloo Gasoline Engine Co. v. O'Neill, 19 N. D. 784, 786, 124 NW 951 [cit Cyc]; State v. Kent, 4 N. D. 577, 62 NW 631, 27

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