Ashley v. State
| Decision Date | 02 August 1916 |
| Citation | 72 Fla. 137,72 So. 647 |
| Parties | ASHLEY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Dade County; H. Pierre Branning, Judge.
John Ashley was convicted of murder in the first degree, and brings error. Reversed and remanded.
Syllabus by the Court
The provision of the Constitution in reference to the right of an accused to be tried by an impartial jury in the county where the crime is alleged to have been committed is an important one to the accused.
Where an application in a criminal prosecution for a change of venue from the county where the crime was committed is made by the prosecuting attorney, and the accused objects thereto the matter should be tested in some way so as to make it clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.
COUNSEL C. D. Bowen, A. J. Rose and Simon Pierre Robineau, all of Miami, for plaintiff in error.
T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
On September 4, 1912, John Ashley was indicted in Palm Beach county for the murder in that county of De Soto Tiger, an Indian, on December 30, 1911. On the first trial held in June, 1914, the jury disagreed, and a mistrial was declared. At a subsequent trial in November, 1914, after 11 jurors had been chosen, and pending the consideration of a motion of the state attorney for a change of venue, the defendant escaped from the castody of the sheriff, and the jurors that had been sworn on their voir dire in the case were discharged. In March, 1915, the defendant was again put upon trial. The state attorney renewed his motion for a change of venue, and filed an additional affidavit made by himself in support of his motion. Counter affidavits were filed for the defendant in opposition to the motion for a change of venue. The court 'denied the original motion for a change of venue, and announced that a test would be made in an endeavor to obtain a fair and impartial jury for the trial of this case in Palm Beach county.' A venire for 18 talesmen was issued; 16 were served and appeared. This panel was exhausted when 2 talesmen had qualified, and another venire for 110 talesmen was issued. Ninety-five were served and answered. This panel was exhausted without further additions to the two qualified talesmen, and another venire for 7 was issued and served. These 7 were 'sworn on voir dire and examined as to their general qualifications; accepted.' The motion of the state attorney for a change of venue was again renewed, considered, and granted. An exception to the ruling was taken by the defendant. At the trial in Dade county under the change of venue the defendant was convicted of murder in the first degree, and took writ of error.
The Constitution declares that:
'In all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed.' Section 11 Declaration of Rights.
Statutes of the state provide as follows:
'All criminal causes shall be tried in the county where the offense was committed, except when otherwise provided by law.'
'Whenever it shall be made to appear to the satisfaction of the presiding judge of any of the circuit courts of this state that the venue of any cause, then pending in such court should be changed either because a fair and impartial trial cannot be had in the county where the crime was committed, or because it is impracticable to get a qualified jury to try the case in the county where the crime was committed, or where i appears from the examination of the books of registration of the county, that there are not a sufficient number of registered voters to form a grand and petit jury, it shall be in the power and discretion of such judge to change the venue of such case, from the circuit court of the county where such cause is at the time pending to the circuit court of any other county within the same...
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Bundy v. State, 57772
... ... The venue was changed in direct response to appellant's own request. By asking for a change of venue, Bundy waived his right to be tried in Leon County. See Ashley v. State, 72 Fla. 137, 72 So. 647 (1916) (dicta). Bundy suggests that had the trial court in Leon County better controlled the publicity a change of venue would not have been necessary, but there is nothing in the record to show that the trial court's actions could have had more than only a ... ...
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1998 -NMCA- 18, State v. House
... ... 225, 427 P.2d 917 (1967) (en banc) (the grant of a change of venue motion filed by the state was reversed where there were two mistrials, defendant objected to change of venue, there was no evidence of bias against state, and evidence of bias against defendant); see also Ashley v. State, 72 Fla. 137, 72 So. 647 (1916) (per curiam) (where two prior mistrials declared and defendant objected to state's change of venue motion, district court erred in granting motion despite great difficulty in selecting another jury); Rhoden v. State, 179 So.2d 606 (Fla.Dist.Ct.App.1965) ... ...
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Sailor v. State
... ... to actual test." 5 Id. at 796 ... Since Hewitt, the Florida Supreme Court has decided cases in which trial courts granted state requests for change of venue over defense objection. See Higginbotham, 101 So. at 235; Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916); O'Berry v. State, 47 Fla. 75, 36 So. 440, 443 (1904). In each case, the court reversed the defendant's conviction, holding the state had failed to establish that a fair and impartial trial could not be held in the county where the crime was ... ...
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Parker v. State
... ... It is ... the established law of Florida that an individual charged ... with a crime has the constitutional right to be tried in the ... county where the crime was committed. See Section [142 Fla ... 215] 11 of the Declaration of Rights of the Constitution of ... Florida; Ashley v. State, 72 Fla. 137, 72 So. 647; ... O'Berry v. State, 47 Fla. 75, 36 So. 440 ... Section ... 4337, C.G.L., prescribed the procedure and the grounds for a ... change of venue in civil and criminal cases. It is true that ... under the laws of Florida a person charged with a crime is ... ...