The record-union., 1891-01-18


| the constitutions provided in express terms
that one charged with crime should be en-
titled to a trial by a jury selected from the
county or district where the oitense is charged
to have been committed and, therefore, the
Statutes referred to We're in direct conflict
with the express requirements of the constitu-
tions, while in this State, the constitution con-
| tains no such requirement. As to most OF the
States the fact contended for is true but not as
| to all of them. But can this make any differ
ence? Does not our constitution confer upon
a defendant charged with crime precisely the
same right although not expressed in terms
| We have seen that this was the we'll under
that 1t is this same right that is held inviolate
by our constitution. In koppikus VS.. State
Capital Commissioners (16 Cal. 256), in
discussing the effect of this constitutional
provision, the court said: .The provision
of the constitution, that the right of trial
by jury shall be secured to all, and re-
main involate forever applies only TO
civil and criminal cases in which an issue
of fact is joined The language used iCih
ference TO The right as 10 eristS common idlo
1t is true, that the civil law was in force in
this State Mt the time of the adoption of the
constitution, but its trainers were, with few
exceptions, from states where the common
law prevails, and where the language used has
| a well-defined meaning The people who, by
their votes, adopted the constitution, at least a
vast majority OF them, were also from countries
where The common law is In force and they
looked upon the right secured as the right
| there known and there held inviolate. 1t is in
| this common law sense that the language has
always been regarded by the courts of this
State. 1t is right secured to ALL and in
| violate forever in cases in which il is eXer-
cised in the administration of justice accord
ing to the course of the common law, as that
law is understood In the several States of the
! Union" See also Cassidy VS.. Sullivan (61
Cal. 266.)
1t is true the question before the court, in
the cases cited was as to the class of cases tria-
BILE by jury, but the language used would have
| been just as appropriate and applicable If the
| question now before US had been under con-
| sideration. Mr.. Cooley, in his work on Con-
stitutional Limitations, in discussing the eff
| feet of such constitutional provision as ours,
says: accusations of criminal conduct are
| tried at the common law by Jury: and wher-
ever the right to this trial is guaranteed by the
Constitution, without qualification or restric-
tion, it must be understood as retained in all
those cases which We're triable by jury at the
common law, and a0ih all the common lar IN
cide,tts to q jury trial, so far, at least as they
can eau; be regarded as tending to the protection OF
dents of common law trial by Jury are es-
sential elements of the right The jury must be
indifferent between the prisoner and the Com
monwealth; and to secure impartiality chal-
lenges are allowed, not only for cause, but also
pefemptory without assigning cause. The
jury must also be summoned from The rtci7laqe
,ctere Tie crime Is supposed 70 hare been COM
naitteo; and the accused will thus have the
benent, on his trial, of his own good character
and standing with his neighbors il these he
mas preserved; and also of such knowledge as
the jury may possess of the witness who may
give evidence against him. He will also be
able, with more certainty to secure the at
tendance of his own witnesses" Cooley,
Const. Lin. 9th ed. PIP. $50 to 3939
rms same doctrine, and the reasons for up
hodingit it, are more fully stated by the same
learned author and Judge in the case of Stuart
VS.. kllnball (43 Mich. 1lS), in which 1T said:
The Constitution of the State provides that
The right of trial by jury shall remain, but
shall be deemed TO be waived in all civil cases
unless demanded by one of the parties in such
manner as shall be prescribed by law art
vi. 3, 27.) The right is to remain What
right? Plainly the right as ii existed before
the right To IL trial by jury as it had become
known to previous Jurisprudence of the State.
| Underwood VS.. People. 80 Mich. IL The
right Is not described here; it is not said what
snail be its incidents; 1t is mentioned as some
thing well known and understood, under a
particular name; and by implication at least
even IA waiver of its advantages is forbidden.
If the accused himself cannot waive them,
plainly the Legislature cannot take them
| away. The next section of the Constitution
repeats the guaranty of this method oftrial in
every criminal prosecutions, and nothing is
! better settled on the authorities than that the
Legislature cannot take away n single one OF
its substantial and beneficial incidents; opin-
ions of Judges, Il N 81. $50; Ward VS. feo-
pie, 80 Mich. l1G; and even the accused can
not waive any one OF the essentials. Work VS.,
state, 2 Ohio (N: 81 236; Cancemi VS.. People,
Is n. Y. 1913; Hill vs.. People, 16 Mich 20 |:
Allen VS.. State, 54 Ind, 461
Now that in jury trial it is implied that the
lriai snail be by jury of the vicinage is familiar
law. Blackstone says the Jurors must he of
the visae, or neighborhood; which is inter-
preted to be of the county where the fact is
committed: q Com, 35O.l This is an old rule
OF the common law: Hawk, p. c., b. 2, c. 40;
Hale =. c., 261; and the rule was so strict
and imperative that ii an offense was COM
mttted partly in one county and partly in an
other, the offender was not punishable ut all.
(Hawk, Z. C., b. 2, C. 20; l Chit, CIR. l.. 1770
This ovcr-nicety was long since dispensed
with, but the old rule has in the main been
preserved in its integrity to this day. 1t is true
that Parliament as the supreme power of the
realm made some exceptions, which are enum-
Grated by Mr.. Chtty in his treatise on Grim
mai Law vol i, p. lI9), the chief of these
being cases of supposed treason or msprision
of treason examined before the Privy Council,
and which under the statute of Henry VIII'
might be tried i'll any county, and offenses OF
the like character committed out of the realm
and which by n statute of the same arbitrary
reign We're authorized to be tried in any
county in England. But il is well known that
the existence of such statutes with the threat
TO enforce them was one OF the grievances
which led to the separation of the American
colonies from the British Empire. If they
were forbidden by the unwritten Constitution
of England, they are certainly unauthorized
by the written Constitutions of the American
States, in which the utmost pains have been
taken TO preserve all the securities of indiyid-
ual liberty. 1t has been doubted in some
States whether il was competent even TO per-
NIT change of Venue ON the application OF
the state, TO escape local passion, prejudice
and interest: Kirk VS.. State, / Cold 34I.
| Osborn VS.. State, "a Ark. 62o; Wheeler VS.
state, 2f Wis. %; but this may be pressing
II.
| MINI. 447; Gut VS.. State, Q Wall. 50. But
no one doubts that the right TO a Trial bv n
jury of the vicinage is as complete and certain
now as it ever was. and that in America in is
indefeasible. q Bish., CIR. Law t2d ed : $50:
Wharf. Grim. Law, 277; Paul VS. Detroit
32 Mich. los: Ward VS.. People, SO Mich.
116.p
This case .was decided under Constitu-
tional provision the same, in effect as our
own, and is directly in point.
1t may be added that the effect of holding
mol will h.af
render it necessary, in n case where no iurv
can be obtained in the county, that a defend
ant be discharged or held in confinement for
an indefinite time until such changes take
place in the county that q jury can be had
but we cannot take away from the defendant
@ right conferred upon him by the Constitu-
ton, on the mere ground that such a result
may follow in rare cases. The right is one
that has always been regarded as of great i'm
portance, and has been preserved and contin-
ued in force by the Constitution of the
United States, and perhaps by the Con-
stitutions of every State in the Union
II it be allowed that the Legislature can break
in upon this right and take 1t away or abridge
it on the ground and for the reason stated in
the statute under consideration il must be adj
mitted that It may do so for other reasons, and
thus the right guaranteed by the Constitution
will be subject to modification at the will of
the Legislature, and this cannot be conceded
We are convinced that the section of the Penal
Code, so far rs 1t authorizes a change of Venue
on the application of the District Attorney,
without the consent of the defendant is un-
constitutional ana void; that the change of
Venue in this case was improperly granted
and that the Court below had no Jurisdiction
to try the cause
But If 1t We're conceded that the statute is
valid, the result of this appeal must be the
same The application for the change of venue
and the affidavits in support of it, were en-
tirely insufficient to bring the case within the
statute or TO authorize a change of the place of
trial. The application was not made on the
ground that no jury could be obtained in the
county, but because q fair and impartial Jury
could not be obtained. AS to what will CON
stitute fair and impartial jury there may be
many different opinions. The statement that
such jury could not be obtained was the
statement of mere conclusion, and the facts