Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-06-05
Correct copy: ]. P. CLARK, Clerk.
Lewis NJ. Kirk VS.. State Of Tennesse..

At the June Term, 1860. of the Circuit Court OF
Lawrence county, the plaintiff in error was ar
raigned upon an Indictment for murder IN the nrst
degree, and put upon his trial. Much time was
spent in the attempt to select jury. Some SeCe'
hundred Jurors were summoned, and tried by the
court; out Of the whole number, but eight jurors
were elected; nine challenges were made by the
prisoner and seven by State all the others were
found by the court Incompetent
In this state of things "the court being of opin-
ion that sufficient number of competent Jurors
to make up Jury in the case, could not be pro-
cured in the county of Lawrence" and consequent
y, that fair and impartial trial could not be had
in said county, ordered the venue to be changed.
To this the prisoner objected, and insisted upon
trial in said county.
to which county the venue should be changed,
elected Maury county.
The September Term of the Circuit Court OF
Maury 1860, the prisoner was tried and convicted
of murder in the second degree, and sentenced to
fifteen years confinement in the Penitentiary. From
which Judgment, he appealed in error to this
court
The error assigned is, that the court did not pos
sess lawful power to change the venue, Against the
consent of the prisoner.
The Code provides (sec. $3.50 that, when the
Court in any criminal case upon an attempt TO Sc
lect or empanel jury for the trial Of the defend
ant ia of opinion that fair and impartial trial can
not be had in the county where the cause Is then
pending" "the venue may be changed" without the
prisoners consent
This provision of the Code, it is insisted in Vio-
lation of the 9th Sec of the lat art of the eonstu
ton of this State which declares, that IN all GRIM
inal prosecutions, the accused hath right
to a speedy public trial by an impartial jury OF the
county In which the crime shall nave Deen
committed
scented for our determination; and we have bestow-
ed upon it a careful consideration, the result OF
which is that the provision of the Code Is lnconsst-
ent with the constitution, in our judgment
The argument, founded upon the supposed absurd
and mischleyous consequences to arise out of this
determination is plausible; but the force Of di-
rect explicit and unequiVooal constitutional prin-
ciple is not TO be avoided by arguments Of this
sort.
1t will not be claimed by any one, that sprOvison
of the constitution is more flexible In It's nature
than an act of the Legislature. To put them on the
same footing, in this respect, is perhaps liberal
concession to the argument opposed to our conelu-
sion Now, which is the doctrine in regard to the
Interpretation of statutes, as maintained by the
most ar proved authorities Blackstone says Il vol
Comm. 81 the acts OF Parliament that are impossi-
BILE to be performed are of no validity; and if there
arise out of them collaterally any absurd conse-
auepces manifestly contradictory to common rea-
son. they are with regard to thoae collateral conse
quennes, void. But, he adds, "if Parliament will
positively epact thing to be done which is unrea-
sonaDae, L RnO" VI no power In the ordinary IorHs
of the Constitution that is vested with authority to
control" Christian, in his note upon this passage,
questions, snd perhaps JUSTLY correctness IN part
He says: :" If an act of Parliament is clearly and
unequivocally expressed, I conceive 1t II neither
void in its direct nor collateral consequences, how
ever absurd and unreasonable they may appear.
If the expression will admit of doubt IT WIN NOS
then be presumed that that construction can De
agreeable to the intentions of the Legislature the
consequences of which are unreasonable; but when
the sgni6caton of Statute is manifest no author