4 Del. 582 (Del.Oyer.Ter. 1847), State v. Burris

Citation4 Del. 582
Opinion JudgeBooth, Chief Justice.
AttorneyWales and Bates, for the prisoner, Smithers and Bradford, for the State, replied,
CourtCourt of Oyer and Terminer of Delaware

Page 582

4 Del. 582 (Del.Oyer.Ter. 1847)




Court of Oyer and Terminer of Delaware.


Fall Session, 1847

Change of venue.

Kent sessions, 1847. Indicted for enticing and aiding slaves to run away.

Wales and Bates, for the prisoner, moved the entry of a suggestion on the record in order to change the venue to New Castle county, and obtained a rule to show cause founded on an affidavit of the defendant, that he believed he could not have an impartial trial on account of prejudice and public excitement in Kent, and the fact that sundry jurors were slaveholders, or relations of slaveholders; that several persons who came to Dover to be bail for the defendant were assailed and maltreated on the public highway; and several persons were actively employed in endeavoring to procure his conviction, and had contributed funds for that purpose; and swearing to a good defence on the merits as the defendant was advised and believed.

This affidavit was also confirmed by another from Ezekiel Cowgill, stating in general terms the existence of prejudice and his belief that an impartial trial could not be had in Kent.

The defendant's counsel argued, that his affidavit was the proper ground for this application, as the nature of the question would not properly admit of its investigation on testimony prior to the trial. They said the right to a change of venue was recognized by the constitution, and should be accorded whenever there was reasonable ground to believe it was necessary to procure a fair trial, and the defendant's affidavit afforded such ground. They offered, however, to submit to any form of investigation into the truth of the grounds alledged in the affidavit which the court might approve of. (3 B. & Ald. 448; 5 Com. Law Rep. 342.)

Smithers and Bradford, for the State, replied, denying that it was a matter of right to demand a change of venue, but ex gratia when the court is convinced that an impartial trial cannot be had; and that this was matter of proof. They cited 1 Harr. Dig. 2170; 2 Nev. & Man. 167; 1 Ibid 312; Ros. Ev. 188; 4 Barn. & Ald. 573. The affidavit must state facts and not belief. (3 Burr. Rep. 1330; 2 Wend. 250; 7 Cow. Rep. 137; 7 Hill's Rep. 147.)

By the Court :

Booth, Chief Justice.

The right to an impartial trial is undoubtedly a constitutional right, but it is also a common...

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