Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-01-01
SUPREME COURT OPINION.
KSgxyILLE, TENNESSEE, SEPTEMBER TERN, Is


THOMAS 81. CALDWELL, ATTORNEY cr>ln,I A>D RrroErln
WILLIAM A. BLACKBURN ct. aIs, VS.. II. HAWTHORNE.
regret that cannot concur in the opinion Of my brother
Sec 2s56 Of tho Code provides that the venue in
Sec 2s57 declares the making the application for
The change.
2S58 provides. tho presiding Judge upon due
sdsraton should be of opinion that the set forth is
man s3Sn SoW Sn me enahEe ASKED fof
is clear my mind, that the party making the appica
ton is not entitled TO change Of venue, matter Of
course, upon literal compliance with the provisions
he shall the change asked is meaningless. By
this section, it is clearly intended to be decl ard that not
withdrawing the party have made tho application in the
precbed form, he shall not be entitled to change, unless
dvg consideration the Judge should be Of the opinion not
only that the set forth good but also that the truth
thereof evident and credby supported 1t seems TO me-
the construction given by my brother Judges
practically denies to thpresng Judge tue exercseof
discretion whatever, touching the application surely the
Legislature did not intend that tue presiding Judge should
20 through with what, TO would be the farce
duly considering Of the adavts offered by the applicant aud
good End, whether the truth thereof is evident 3rd,
whether the application Credby supported He as
certain from the lace Of the ahdaV o the whetneF
che cause assigned be good but how, would ask can he
presented by the applicant whether the
signed be true false whether the application eredi
Judge that the cause assigned is wholly and without
foundation and at ts spplicaton is mot credibv support
Cd how would ask he ascertain whether tho sugges
ton DO true false If ho be prohibited from all enquiry
and the exercise Of all Of ecitng The truth except
inspection andConsderaon Of the spo adaVits offered
by the Applicant Can this be what is meant by due con-
sdsrationn Yet have he must be Of the opinion
after lie consideration, that the cause set forth is good, and
the evident and Crodbly supported otherwise
he Is not authorized TO order tue change Win due dene
the opinion Of my brother Judges must il does
% thst bare statement Of the proposition enough
70 convince the MIND tho they nave gwen u
this statute erroneous. The belief Of the applicant may
statement Of tho existence belief that he cannot have
and impartial trial owing existing preudo.s against
~ III ~ iirIIanrs Nth S proVisops Of Sc SsS7 II
had bpeu he
2s3s incorporated into tho actt confess my inability TO
The bin Of exceptions states that the pain offered coun
Rdavits % which the defendants objected but they are
not set out in the record Tho record silent as to Che char
and Of those counter adayits, and wholly
fall TO show upon what ground The Judge refused 20 order the
change whether IL was because he was Of opinion the cause
assigned vas not soGd or hs truth thereof was not eleh
fused 4 the Judge was Of the opinion the cause assigned
in fact exist, that the application was not cedbl
supported, but before the Judge authorized to cTd
change Of tho applicant must satisfy the mind Of thu
Judge thst the assigned is 10 fact true and that tho ap
90 ascertain upon due confederation how these things arc
aud how would again ask, 81 be shown the cause s
IL ho meaning Of the statute he NAV do % else i means
rothing and q worse t,sp Sns,rs lie sac Of casa
way, Smith 3rd Hum l5i tho Judge had refused tho az
| pcstiou a. in this case.
Ia that case the eppeat ION 70 change th. venue
der the act Of 1922 which 10 substantially carried into tbs
This court said How shall ssy IN such case that the
circuit court when considering Of this application erred IN
believing the cause assigned not 20 ue s'ol OF e
dent aud credby supported. There certainly are man!
nine mi which NAV 10 safely len 70 by determined by It
There many things don" aud iantactel there As y
would he difficult, and could not bo made effective 10"
think ef them THE believe s the Gully authority up9
this subject he found in reports, and ncwthstand
ing expressly holds that this proceeding in the Giro an
which he supervision Of this court cannot %
made elective aud be determined by tho circuit Judge
in the exercise Of discretion conferred upon him ~ th
statute where may he safely left The ruling Of maJoi
~ Of this court understand it, practically denies 70 th
circuit Judge, the exercise Of any discretion whatever a
requires him TO order the change Of venue whethe OF no
hs opinion the truth Of tie ground Of the app caon =
dsnt or oredbly supported, II the apphcauor DC 4sue
cases the circuit Judge in she exercise ct the dscretona
~ power upon him by the statute esed 70 orde
powers will disrc gard the discretionary power " IN
81 srropsog when such 5ase is contemplated by
tutc is presented the circuit Judge ought mos certainty
asked for should Dc refuse % 10 80 without stating h
reasons this court cannot control that discretion unless %
sued the statute docs not authorize the hearing 81 counter
aadayits 70 this anEel lneS f,' Iyl a. matter .
course 70 chang Upon literal compliance merely VIZ
H. terms or S. ISL something mug; be done n
ropr pt an.r mature consideration he Of opinion IN
cause good the truth thereof evident and that d p e9
hly supported It is evidently contemplated by Sec ~
that tic Judge shall examine and enquire into and
tho truth Of these matters upon she ming 81 me So.
not such error viii authorize this court 70 reverse or %
cru Judge 70 hear counter ahdas % 70 examine y
information vhiH his reach, touching these question:
suppose me rule oil onslIqet,oh' @ = =, lIere ~
uinctcuth ofth criminals iu The state VII g. unNhpie
;
ID which The witussss o lis crime reside, thus Dragon
them distant court Tor i terms until they are N'i
1 out TO au expensive attendant
Sec 5Is5 Of Code, pro~idss taat Iu criminal pros
cu0us may lie changed when upoa the apphcl
ticu OF defendant DO made u appear satisfactorily 60 a
court fr1ra undue excitement against she prisoner
the county whore the committed, any 9TH
o cause affair trial could not qrolablybe had Now VIII p
be Questioned although tie statute silent as % e IN
= ner in which the application is 20 De made or o.
81 that the prisoner might oBcr bis own affidavit ana hoe
such % bis friends conaat 10 crime ashe might 1Ao
Stating The grounds OF thc application were true ana nh
the ruins ia ta case she ronrt could not look BEYOND
out Of these ads'lts but, wld be compelled % grant
change. To constuc0a TauEht with such consequence
. | ] can not assent.
n strange that The circuit Judge may arbr
rly refuse application change The venue and IN su
D. being assigned Tor hs action THIS cour
Act ID De Institute enquiry for Tho purro
of exciting Information ~ which be may DC guided 10 Z
intelligent sNerclss Of hls discretion that, that Of teli
such error as for which thls court viii reverse.
~ amounts 90 s % tlr elreult court Jndge hAndy a.
Arbitrarily refuse thu application, this
but 81 De ineEanty execlsrd she dscFeon q err
- uAwKINs, faAs~
y copy test.
he n. L. PAIIEksQAi clsfk