Barry v. Traux

Citation99 N.W. 769,13 N.D. 131
Decision Date21 May 1904
CourtNorth Dakota Supreme Court

Certiorari by William Barry against John E. Traux, clerk of the District Court for the county of Cavalier, to review an order granting a change of venue in a prosecution of plaintiff for murder. Writ denied.

Writ quashed.

Joseph Cleary and Morrill & Engerud, for plaintiff.

The right of trial by jury as guaranteed by the constitution is that recognized by the usage of the common law. Debates Constitutional Convention N.D., pp. 361, 362. State v Bates, 43 L. R. A. 33 and notes; Harris v People, 128 Ill. 585, 21 N.E. 563; Lommen v Minneapolis & C. Co., 65 Minn. 196; Sovereign v. State, 4 Ohio St. 489; Clark v. Utica, 18 Barb. 451, 29 Am. Dec. 671; Watt v. People, 1 L. R. A. 403.

The elements of the common law right to a jury trial were, twelve lawful men, a unanimous verdict, a panel composed of men from the county where the offense was committed, and the right of challenge.

The term country side meant the neighbors, and eventually the county. 2 Pollock & Mairland's History of English Law, 621; 1 Chitty Crim. Law, 177; 3 Reeve's Eng. Law, 476.

The jury must be summoned from the vicinage where the crime is supposed to have been committed. Cooley on Constitutional Law (5th Ed.) 390; Bacon's Abr. "Juries," 308.

"Jury trial," "trial by jury of the vicinage," "trial by jury of the county or district" are synonymous terms. Watt v. People, 1 L. R. A. 403; Swart v. Kimball, 5 N.W. 635; Steamboat Co. v. Foster, 48 Am. Dec. 258; 12 Pl. & Pr., 289 and notes.

Where there is a constitutional guaranty of jury trial, the legislature cannot take away any of its attributes. 4 Enc. of Pl. & Pr. 378 and notes. Among these is a trial by a jury of the county; and the legislature cannot authorize a change of venue by the state. People v. Powell, 11 L. R. A. 75; State v. Knapp, 19 P. 728; Wheeler v. State, 24 Wis. 52; State v. Denton, 6 Cold (Tenn.) 539; Dongun v. State, 30 Ark. 41; Bramlett v. State, 31 Ala. 376; Ex parte v. River, 40 Ala. 712; State v. Arrison, Ohio, 20 Cin. Law Bulletin; State v. Albre, 61 N.H. 423, 60 Am. Rep. 325.

It make no difference that some constitutions contain the words "county or district;" they merely express in words what the term criminal jury trial implies. See Watt v. People, 1 L. R. A. 403; Swart v. Kimball, 5 N.W. 635.

"Vicinage," at the common law meant "the county." 1 Stubb's Constitutional History, 664; 1 Taylor's Origin & Growth of English Constitution, pp. 314-333.

Where a crime is committed near the county line, it is often provided that trial may be had in either county on the principle that it does not deprive the defendant in a material degree of the benefits of a trial in the vicinage. State v. McCarty, 39 N.E. 1041; State v. Lowe, 45 Am. Rep. 570. While this has in some cases been held unconstitutional, we do not think a case can be found where the state is allowed a change of venue to a distant county.

Geo. M. Price and E. R. Sinkler, for defendant.

The constitutional provision involved is "the right of trial by jury shall be secured to all and remain inviolate, but a jury in civil cases in courts not of record may consist of less than twelve men, as may be prescribed by law." Sec. 7, Const. N.D. We first call attention to decisions of various states upon similar constitutions, and those more restrictive than the constitution of North Dakota.

In Minnesota the constitution contains the provision with the words "within the county or district wherein the crime shall have been committed," added to the usual provision. Notwithstanding this, that state has three times held that the right to try a defendant outside of the county where the crime was committed was constitutional. State v. Cut, 13 Minn. 341; State v. Robinson. 13 Minn. 453; State v. Miller, 15 Minn. 344.

The Iowa constitution has the usual clause without express restriction as to county or district. There a statute, providing that where a public offense is committed on the boundary of two or more counties or within five hundred yards thereof, the jurisdiction shall be in either county, was constitutional.

In Michigan, the constitution provides for trial by jury, and guarantees the right of such trial shall be inviolate, yet a statute providing for a change from one county to another at the instance of either party is unconstitutional. People v. Pittman, 52 N.W. 1039; People v. Furman, 61 N.W. 865; People v. Grossman, 61 N.W. 867.

Ohio upholds the right to change of venue on application of the state. State v. Meyers, 21 Weekly Law Bulletin, 57. Change of place of time with the state as moving party is upheld in New York. People v. Webb, 1 Hill, 179; People v. Vermilyea, 7 Cowan, 132; People v. Baker, 3 Parker Crim. Reports, 181; People v. Wright, 5 Howards Pr. 526.

In Texas the same is held. Cox v. State, 8 Texas Court of Appeals, 254; Ex parte Cox, 12 Texas Court of Appeals, 655; Frizzell v. State, 16 S.W. 751; Robinson v. State, 63 N.W. 869; Benhannon v. State, 14 Texas Appeals, 271; Cannon v. State, 56 S.W. 351.

The Wisconsin constitution contains the provision for a trial "by an impartial jury of the county or district," and under this statute it has been held in that state, that a change cannot be had upon the application of the prosecution. Wheeler v. State, 24 Wis. 52. But this case was practically overruled in State ex rel Brown v. Stewart, 19 N.W. 429, which held that a statute providing that a crime committed within 100 yards of the dividing line between two counties may be prosecuted in either county, was constitutional.

The constitution of Kentucky provides for "a speedy public trial by an impartial jury of the vicinage." A change of place of trial at the request of the state was upheld in Commonwealth v. Davidson, 15 S.W. 53.

Florida has a constitution and statute practically the same as North Dakota's. A change of venue at the request of the state was upheld in Hewitt v. State, 30 So. 795.

The construction to be put upon a constitutional provision is to be determined from the laws existing prior to its adoption, and the history of such laws. People v. Harding, 51 Am. Rep. 95; 6 Am. & Eng. Enc. of Law, 930; Opinion of Justices, 41 N.H. 550.

When the people adopted section 7 of the constitution, declaring the right of trial by jury shall remain inviolate, they referred to jury trials as they were accustomed to it in territorial days and the words of the constitution mean that the right of trial by jury shall remain unimpaired as it was prior to the adoption of that instrument. The courts will construe constitutional provisions to conform to the people's idea or understanding of it. State v. Pugsley 38 N.W. 498.

If it is contended that North Dakota adopted her code and constitution from California, and consequently with the construction there given them, it is sufficient to say, that the case of People v. Powell, 11 L. R. A. 75, wherein the construction of the provision was given, was not decided until 1891, two years after the adoption of our constitution. This case alone upholds the point striven for by plaintiff, and it is decided upon a false assumption of what the common law was. The common law does not admit of a change of place of trial at the request of the state. Bishop New Crim. Prac., section 75.

In England the applicant for a change of venue may be either the prosecutor or the defendant. Rex v. Penperass, 4 B. & Ad. 574; Rex v. Hunt, 3 B. & Ad. 444; Rex v. Holden, 5 B. & Ad. 347; Rex v. Harris, 3 Burr, 1330; Rex v. Nottingham, 4 East, 208.

YOUNG, C. J. COCHRANE, J., did not sit in the case or take any part in the decision, Judge CHARLES A. POLLOCK, of the Third judicial district, sitting in his place by request.



The plaintiff, a resident of Cavalier county, in the Seventh judicial district, is charged with the murder of one Andrew Mallem, which is alleged to have been committed in that county on January 3, 1901. He was brought to trial in July, 1901, upon an information filed by the state's attorney of that county. The jury returned a verdict of guilty, and affixed life imprisonment as a penalty. Upon appeal to this court the verdict was set aside and a new trial ordered. State v. Barry, 11 N.D. 428, 92 N.W. 809. At the second trial, which took place in November, 1903, the jury failed to agree upon a verdict. Preliminary to the third trial, the state moved for a change of place of trial to another county, upon the ground that a fair and impartial jury could not be secured, or a fair and impartial trial had, in Cavalier county. The motion was granted, against the plaintiff's objection, and on March 7, 1904, the presiding judge made an order transferring the case to Walsh county, which is an adjoining county in the same judicial district. The validity of this order is presented to this court for determination upon a writ of certiorari sued out by the accused, the plaintiff in the present proceeding.

The position of counsel for plaintiff is that the district court was without lawful authority to make the order in question and that it is therefore void. The order was made under the authority of section 8122, Rev. Codes 1899, which authorizes a change of place of trial in criminal cases upon the application of the state's attorney, and it is not claimed that the application by the state's attorney did not fully comply with the requirements of the statute. The sole contention is that section 8122, supra, is unconstitutional. Counsel for plaintiff contend that section 7 of the state constitution, which is a part of the Declaration of Rights, guarantees to every...

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    ...of a fair and impartial trial in that county, is the view expressed in another, and perhaps more numerous, group of cases. Barry v. Truax, 13 N.D. 131, 99 N.W. 769, 65 L.R.A. 762, 112 Am.St.Rep. 662, 3 Ann.Cas. 191; Commonwealth v. Reilly, 324 Pa. 558, 188 A. 574; State v. Brown, 103 Vt. 31......
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