The record-union., 1891-01-18
SUPREME COURT DECISIONS.
Filled January 4. 1891.

lFiled January 4, 1911
Aap,peal App rom superior Court, San Francisco
s,,o,lt ror people, Eugene n. Deuprey, Samuel M.
eral Geo. A. johnson.
For appellant. George C. Ross, George A.
DEPARTMENT ONE.
PEOPLE, Respondent,)
POWELL, Appellant,
The appellant was charged by information
IN the County of San Mateo, with the crime OF
murder, alleged to have been committed In
onsn. cnaI county. He was twice tried in said
county, ana the jury failed to agree upon a
verdict at each trial. Without any effort made
to procure a third jury, the District Attorney
moved the court under Section 1888 OF the
renal Code, for change OF venue to another
county. Inc material part OF the application
was as follows: "Said District Attorney, on
pehalf OF the People of the State of California,
hereby makes application to said court for a
ciafge OF Venue from said County of san Ma
teo, to some convenient county, of the above
case OF the People of the State of California
VS.. Lieweilyn A. Powell, on the grounds and
Tor the reasons Uata fair and Impartial j,c7y
cannot DC obtained for The trial Of said case IL,
SAID County Of San Mdteo, the same being the
county where said action is now pending and
hereby states the following facts and causes
Tor making said application, viz: that the
above-nimed defendant is charged, by infor-
miatlon, flied in said Superior Court of said
county of SAN Mateo with the crime of MUIR
der, alleged to have been committed in the
month of November 1887. in killing in said
county, at said time one Ralph s. smith: that
said defendant has. had two trials in said SUI
pefior Court,s on said charge; that the first
trial was had in April, 1855 and the second
trial in August, 1883; that at said first
trial there We're summoned from all
parts OF said county, to appear before said
court, 10 serve jurors in said case,
scVenty-tWo citizens, and of said number
slxty-seyen were examined before n jury could
be obtained in said case; that at said second
trial there were summoned from all parts of
SAID county, to appear before said court To
serve as jurors in said case, one hundred and
eighty-tour citizens, and of said number one
hundred and seventy-three were examined
before Il Jury could be obtained to try said case.
that said county is small in size and popuia-
tisn, and large number of its citizens, whose
names appear upon its assessment roll, are
Italians and Portuguese, and are disqualified
from serving as Jurors, in consequence of not
understanding the English language; that
also, large number of those citizens, whose
names appear upon the assessment roll of said
county, live in the City and County of san
Francisco, and are. therefore, not liable to jury
duty in said County Of San Mateo; that said
case was SO horrible in its nature that ii at
tracted the attention of the people of, and has
been fully discussed in all parts of said County
of san Mateo; that said case has also been dis
cusSed, more less, by the citizens sum-
moned to appear to serve as jurors, as afore-
said; that there are two local weekly news
papers in said county, having general crcu-
iation therein, and the newspapers of the City
and County of san Francisco also have II
widespread circulation throughout said
County of San Mateo, and by and through the
columns OF the newspapers aforesaid, the
facts of said case, and the trials thereof have
been fully discussed before the citizens of said
County of san Mateo
"tor the reasons herein set forth, said Dis
trict Attorney says that fair and impartial
jury cannot De obtained 10 h,y said case in said
County Of SIN Hdteo, and said District Attor-
ney therefore prays that said court make an
order transferring said action of the People of
the State of California VS.. Llcwellyn A. Powell
now pending in said court, rs aforesaid, To
some convenient county, free from like OBJ
jections"
This application was supported by the fol-
lowing affidavit of the District Attorney:
George II. Buck, being duly sworn SAYS
that he is the District Attorney of said county
OF san Mateo, and is the same person who
made and signed the foregoing application;
that as such District Attorney he makes said
application; that he has read said application,
and knows the contents thereof, and that the
same is true of his own knowledge, except as
to the matters which are therein stated on his
information or belief, and rs to those matters
he believes il to be true"
In addition to this affidavit there were writ
ten others, by citizens of said county, in
which each of the atlantis, after alleging his
residence in the county and acquaintance
with the people thereof, alleged that he knew
the contents of the affidavit of the District
Attorney and that said affidavit is Sceii-
founded and t1'te'
The Assessor of the county also made afli-
davit that he had examined the last assess
ment of the county and that there were about
six hundred persons among those whose
names appeared on the assessment roll, who
had the necessary qualifications, and were
competent to serve, as jurors Of said county.
The Sheriff OF the county also made the fol-
lowing affidavit in support of the application:
'tW. II. kinne, being duly sworn, says That
he is now, and has been for more than two
years last past the Sheriff of said county;
that at the two trials of the above ease in
suid county, he summoned most of the jury
in both of the said trials of said case; that in
doing so he was obliged to- and did go to and
visit all parts of said county; that he was n
a dot f.arr nt fhn1
the fall of 1883, for the office of Sheriff of
said county, and during the said campaign he
visited all portions of said county many
times; that he has also seen many people of
and from all parts of said county at the coun-
ty seat, TO wit: ut Redwood City, during the
past year; that he has had an opportunity TO.
and has discussed the merits of the case of
The People of the State of California VS..
Llewellyn A. Powell, now pending in said Su-
perior Court, and that he understands the
feelings of the people in regard TO said case,
and has often heard them express their opin-
ion about said case; that from such expression
of the people, so interviewed, he says that q
try said case in said county"
The defendant objected to the granting of
the change of Venue, and in opposition 10 the
application therefor filed the affidavit of one
OF his attorneys and seventeen other citizens
OF the county, to the effect that they We're resi-
dents OF the county and knew many OF the
other residents thereof, and that in their
opinion fair and impartial jury could be
obtained in said county to try the defendant.
The application was granted and the Venue
changed to the city and county of san Fran
cisco. When the case reached that county the
defendant objected to being tried therein, on
the grounds in substance, that the olfense was
charged TO have been committed in the county
of San Mateo; that the Superior Court OF that
county alone had jurisdiction to try the de-
fendant and, that the court of the City and
County OF san Francisco had no jurisdiction
in the matter, and moved that the cause be
remanded to the County of San Mateo for trial.
The objection and motion were overruled the
int fNf
manslaughter, and sentenced to the States
Prison for the term of ten years. He moved
for q new trial, which was denied, and now ap-
peals to this court.
The change of venue was granted under Sec
tion 1,o33 of the Penal Code as amended,
which provides:
"A criminal action may be removed from
the court in which it is pending;
''Second-On the application of the District
Attorney, on the ground that from any cause
no jury can be obtained for The trial of the de-
Jenddnt in the county where the action is
pending"
The appellant contends. first. that this sec
ton of the Code, so far as it authorizes a
change of venue on the application of the Dis
trict Attorney, without the consent of the de
fendant, is in conflict with Section of the
bin of rights contained in the Constitution
of this State, which provides: "The right OF
trial by jury shall be Secanedto all and remain
fliuioldte."
effect of this clause III the bill of rights is to
preserve and continue in force the right of
trial by jury as ft eGisted at common ldiU and
that the common-law right was to trial by
jury selected from the vicinage or county.
This calls upon us TO determine, first, what
the common-law right of trial by jury was,
and, second, whether or not the right is the
same under our constitution. We think the
common-law right of trial by jury is clearly
and definitely stated by Mr.. Blackstone in his
Commentaries Book 4, page 800 as follows:
'When, therefore, prisoner, on his arragn-
ment, has pleaded not guilty and for his trial
hath put himself upon the county, which
must returna panel of jurors, dberos et ieyales
homi,les, de cicineto: that is, freehoiders,