The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1886-02-03


there is a pregnant passage. "The King has
an interest in MISREPRESENTATION of all his sub
jects." This is the germ from which sprang
the right of the citizen In the Court OF Gener.
tecting as we'll as punishing-in protecting
the prisoner in the dock on charge Of murder
as we'll as in furnishing him for Staying his
fcllowman. And as far back as the reign of
James the accused had right to apply for q
change of venue on aftidavts that he could
not get Il fair and impartial trial IN the coun-
ty, 8 Blackstone, 2a5. But from that time
down TO the present day, an examination Of
all the English Common Law Reports will fail
to discover single case wherein the govern
ment moved for change of venue. am not
provide for removing the indictment on the
Courts own motion. or on the motion of the
defendant or the prosecutor IN certain speci-
fed cases such as when the county Is defend
ant In q charge for failure TO repair bridge or
to keep the highway In good order Nor do
forget that when the venue is laid In the coun-
~ OF the city in certain trials for misdemean-
orS, the Indictment may be removed to the
county ut large on the motion Of either side
on filing q recugnizance Of forty pounds ster-
ling. Such changes are provided for by stat
ute, and repeat that at Common Law there
is not solitary case in England where the
IN AMERICA.
So far as 7 have been able to discover it
would seem that in every State Of the Union,
Il ClhnEe Ol venue Gull Do Iul Oll .
application, except in the STATE of Vermont.
In State against Howard 2 Shaw, 4l4. the Su-
prcne Court of Vermont decides that the trial
Of a criminal case cannot be had In another
county than in the county In which the Of
fence is alleged to have been committed. With
this exception the English Common Law ON
this subject is deemed part Of ours. Bish.
Grim. Proc. SO. The defendant may waive
this constitutional right MS 1t is q personal
privilege which he may Insist on or waive for
good cause shown. Bish. 3 30. The change
Of venue, however, is strictly limited to cases
in which, without It, there cannot be fair
trial; the authority is exercised with great
caution, and only in extreme cases. The right
to apply for a change has been exercised by
the government or the prosecution In the fol-
owng States ony New York. Texas Min
The New York Revised Statutes implicitly
give the right to the State. II. $. Gl4. /.
And the following cases have SO held: People
yh r. r. Co. Park wl 49, Pe1pe | ,1oi oB"bser,
pie " Vermileya. Cowcn, l:9.
In Texas, a statute In ex press words empow-
ers the State to make the motion, the title of
the act clearly showing this purpose: Cox v;
iSe' crim'' Law WI, MAJ. 80 ss4t5. R 20 ~ l. '''> ''
The Judge-Mr. Benet, in all yonr investi-
cation, did You nm, no application m e,t for
Mr.. Benet-O, yes, your Honor. aud l will
cite them after awhile. I have them in my
notes.
III MlNHtSOLa lIleIC IN sllulIttI SIdCuIC.
Aren't hold, Cr. L. 4 p. 23l.
In Wisconsin statute giving the State the
riSht to move for change Of venue has been
declared invalid and unconstitutional
Wheeler v. State, "A Wise. So; Archb. 24,
note.
In Tennessee the venue can not be changed
without the prisoners consent, and the re-
cord must show that the application was
Denton, 6 Coldwell. $50: Arclb. 28I, note.
In all the States, therefore, except New
York, Texas, aud Minnesota, the defendant
alone can apply for change OF venue.
Eish. 4 ~.
IN SOUTH CAROLINA.
Inow come to South Carolina. There is
no instance In this State, before the adoption
of the constitution 1868, wherein the State wns
the applicant for change of venue. I shall
simply cite one Of The old cases. State V. Will
liams2 2 McCord, 3'3 where the defendant was
the applicant and made affidavit that n sub.
scription had been raised by the citizens of
the district TO apprelIend him. The motion
was refused, because the "Dlstrict, Newberry,
is a large and populous one and could afford
pretended. Even In civil cases the n1fidavitS
TO induce the exercise of this discretion ARE
required TO be very strong" Cases clteI: @ g.,
tion at shall be the duty of the General
Assembly to pass the necessary laws for the
change of venue in all cases, civil and GRIM
inal. over which the Circuit Judges have orig
"
supported by affidavit. that a fair and impair
tlal cannot be had in the County where such
trial or prosecution was commenced
This requirement of the Constitution Is met
by the Statute of 1858 XIV Statutes. Mt Large
81, reenactcd verbatim In General Statutes.
Of lSS2, Section 2,ll4:
"rhe Circuit Courts shall have power to
change the venue in all cases, civil and
such Courts have original and appellate Juris,
dic,ion. by ordering the record to be removed
for trial to any County adjong the County: IN
which such action or prosecution was COM
menced, or to any County IN the discretion
Of the presiding Judge: Provided That the
application for removal shall be made to the
Judge sitting In regular term by some party
satisfy the Judge before whom the applica.
ton Is made that p fair and impartial trial
cannot be had In the County whore such ac-
ton or prosecution was commenced: Pyot1 l.
ed further, That twenty days notice of such
sse'''a''0n sy SNa'i 0' gwen 10 'ne "a!7'se p'''
II has never been doubted that under the
Common Law The Courts OF Common Pleas
and General Sessions have power TO change
civil side Of the Court either party, plaintiff
or defendant, has had the right to make the
motion. But on the criminal side Of The
Court the defendant alone has exercised
this right; he alone could exercise 1t under
the Common Law; and he alone can exercise
it to-day, unless the Statute Just quoted has
invested the State with the right. contend
tion. And Counsel for the State can. only
claim that the comforting Of this right is I'M
piled In the terms" "by some party interested"
That phrase has not yet been passed upon or
urged by the State that s,rate V. Addison 2 S.
G.. 356 has defined 1t; but In that case the point
was not made by the Counsel on either side,
nor was it passed upon by the Court In an
obiter dictum. Chief Justice Moses says in
tie opinion: ut is difficult to determine IN
what sense the words, some party interested'
are used in the act" But he does not decide
whether or no the Slate is ~ party inter.
ested." The decision decides this, only, that
IF the motion is TO be made for the removal
of the trial on behalf Of the State 1t should be
by the Solicitor, and not hy the prosecutor.
Your Honor pcrceives that the Court does not
decide the question nov before you is the
State". party interested" and has she the
right to move for change of venue?
1t is proper now, your Honor, to consider
what is included In the right OF
TRIAL BY JURY.
shall now proceed to discuss the requisites
and incidents OF this right, and to do SO shall
cite Blackstone, 43S, where he speaks of q
trial resulting in verdict "by The unanimous
suffrage of twelve of bis equals anu neigh
GOrS."
In Bacon's Abrdgement 1928 he speaks of
the defendants right to n "verdict of twelve
honest and impartial men of his neigh6orrhood
and cite to your Honor that magnificent
chapter in Blackstone, "Of the Trial by Ju-
ry" chapter @, page 3lS, which from begin
ming 10 end is one glowing and just panegyric
Of this bulwark Of our liberties. The learned
commentator shows that this right was not as
is popularity supposed instituted by Magma
Churtu. but that centuries before the barOns
compelled King John to grant the great char
ter at Runnymede, the lives and liberties OF
our ancestors had been secured by The right of
the trial by jury. On page 352 he shows that
the old vcnire Jncias commanded The Sheriff
"that he cause to come here on such day.