O'berry v. State

• Decision Date: 05 April 1904
• Court: Florida Supreme Court
• Parties: O'BERRY v. STATE.

36 So. 440

47 Fla. 75

O'BERRY v. STATE.

Florida Supreme Court

April 5, 1904

In Banc. Error to Circuit Court, Brevard County; Minor S. Jones Judge.

James F. O'Berry was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Section 11 of the Declaration of Rights of the Constitution of 1885 secures to one accused of crime the right to a speedy and public trial by an impartial jury in the county where the crime was alleged to have been committed.

2. The provision in the Constitution of 1885 in reference to the right of trial by an impartial jury in the county where the crime was committed is an important one to the accused, and such an important right must not be lightly treated.

3. Sections 2928 and 2929 of the Revised Statutes of 1892, and chapter 4394, p. 159, Laws 1895, in so far as they authorize the court to direct a change of venue when an impartial jury cannot be obtained in the county where the crime is alleged to have been committed, upon the application of either the prosecuting attorney or of the defendant, are constitutional.

4. Where an application for a change of venue in a criminal cause is made by the prosecuting attorney, and the accused objects to the granting of the same, the better practice is to put the matter to an actual test.

5. Where an application for a change of venue in a criminal cause is made by the prosecuting attorney, said application being supported by affidavits, and no actual test of the matter is had, the same should be denied, unless said affidavits fully, clearly, and positively set forth such facts as to make it appear to the satisfaction of the trial judge that it is impossible to obtain an impartial jury to try the accused in the county in which the crime was committed.

6. Section 2918 of the Revised Statutes of 1892 applies to views of personalty as well as of realty, but said statute should be strictly construed, and the view ordered thereunder should be a view pure and simple.

COUNSEL

Bryan & Bryan, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State. The plaintiff in error (hereinafter referred to as the defendant), at the fall term, 1902, of the circuit court for Osceola county, was indicted for the larceny of certain cattle. On the 9th day of April, 1903, at an adjourned term of said court, the defendant was arraigned upon said indictment, and pleaded thereto 'Not guilty.' On the 10th day of April, 1903 the state attorney for said circuit filed the following motion for a change of venue of said cause: 'Now comes the state of Florida, by James D. Beggs, State Attorney, for the Seventh Judicial Circuit of the state of Florida, and moves for a change of venue of the above-entitled cause, because he does not believe that it will be practicable to have a fair and impartial trial of said cause in the county of Osceola, for the reasons following, to wit: That in the county of Osceola there are only about six hundred persons qualified to serve as jurors in said county.

'Second. That at the recent primary election held in said county the defendant was a prominent candidate for the Legislature from said county; that during such primary the defendant was charged with the larceny of an animal, and such charge was discussed in the primary; that the primary was held in July, 1902, and that shortly after such primary a preliminary hearing was had in such case, and a great deal of interest was manifested in said cause, and the same was discussed generally throughout the county; that some time after the preliminary hearing mentioned the present charge was made against the defendant, but no legal proceedings were had upon the same, except that of a suit in replevin by one Needham Rowland, who claimed the cattle involved in this case; that the replevin suit was discussed, and the facts in the replevin suit are practically the same facts involved in this cause; that these facts were discussed by a great many people prior to the fall term of this court, held in this county in 1902, when the indictment was found; that at the fall term, 1902, the indictment was found in this case, and another indictment was found against the defendant for the larceny of an animal; that a large number of persons were in attendance upon the term of the court, and the cases were fully discussed by the people in attendance upon the court; that later, during the same term of the court, the other case was tried, and number of persons were summoned to attend as jurors and witnesses in both cases, and that, on account of the prominence of the defendant and the gravity of the cases, they were generally discussed by the public, and considerable interest and feeling manifested by the friends of both the defense and the prosecution; that after the adjournment of the court, to wit, in December, 1902, the case of replevin between Needham Rowland and Jonathan Strickland over the cattle involved in this case was tried in said county, and a great deal of interest was manifested in the same by the parties and their friends, and a large number of witnesses testified in said cause, and considerable time taken in the trial of same; that in the trial of such cause it developed that Needham Rowland claimed the cattle under a purchase from the defendant, James Frank O'Berry, and his right to the property depended upon the right of the defendant to the same; that witnesses in said cause reside in various parts of the county, and that said cause and the facts involved in this cause have been discussed generally throughout the county, and that many of the best citizens of the county are particular friends of the prosecution and defense, respectively, and feel much interest in the case, and have taken much interest in the same, and have discussed it on many occasions; and that the feelings of the people throughout the county have to a large extent become involved in said cause.

'[Signed] James D. Beggs,

'State Attorney.'

In support of said motion the state filed, in addition to the affidavit of the state attorney accompanying said motion, three other affidavits, from Jonathan Strickland, J. W. Harwell, and E. L. Lesley, all of said affidavits being substantially in the same form; the affidavit of the said Jonathan Strickland being as follows:

'State of Florida, County of Osceola. Before me personally came Jonathan Strickland, who, being duly sworn, says he is a citizen of the county of Osceola and state of Florida; that he is fully acquainted with the case of The State of Florida v. James F. O'Berry; that recently, in the county judge's court of Osceola county, Florida, the case of Needham Rowland v. Jonathan Strickland, in an action of replevin, was tried, and as the case involved the cattle in question, and upon which the state's case against James F. O'Berry is based, and the same witnesses are in both cases, the testimony in the state's case will be the same. In the case before the county judge the jury was composed of men from various parts of the county, and the witnesses are from nearly every section of the county. He further states that the defendant, James F. O'Berry, was recently a candidate for representative, and, on account of the prominence given him by that race, the evidence has been generally discussed, and the case talked. Affiant further states that on account of this discussion of the case, and of the number of witnesses, and prominence of the defendant, caused by the race above mentioned, that it will be impracticable to obtain a jury in the county to try the case in a fair and impartial manner.

'[Signed] Jonathan Strickland.

'Sworn to and subscribed before me this --- day of April, 1903.

'Jno. M. Lee, Clerk,

'By W. R. Johnston, D. C.'

On the same day the following order was made by said court on said motion: 'In Circuit Court, 7th Judicial Circuit of Florida, Osceola County, Adjourned Spring Term, 1903. The State of Florida v. James Frank O'Berry. Larceny of Animals. The defendant, James Frank O'Berry, being in open court. This day this cause came on to be heard in open court upon the motion and application of the state attorney of the Seventh Judicial Circuit of Florida for a change of venue, and the court being by said motion and accompanying affidavit informed in the premises, and being satisfied that it is impracticable to get a qualified jury to try said cause in the county of Osceola, the county in which said crime is alleged to have been committed, it is ordered that the application of the state attorney aforesaid be granted, and that a change of venue be had to the county of Brevard, state of Florida.

'Done and ordered in open court this 10th day of April, A. D. 1903, the accused being present in open court, to which order the defendant did then and there except.

'[Signed] Minor S. Jones, Judge.'

The defendant objected to the granting of said motion, and duly excepted to the order of the court thereon.

On the 29th day of April, 1903, at a term of court held in and for the said county, the defendant filed a plea to the jurisdiction of the court, wherein he again questioned the validity of the order transferring said cause for trial from the circuit court for Osceola county to the circuit court for Brevard county. To this plea the state interposed a demurrer, which was sustained. A trial was then had, which resulted in a verdict of guilty, and the defendant was sentenced to confinement at hard labor in the State Prison for the period of two years.

The defendant also filed a motion in arrest of judgment, wherein the validity of the order of said transfer was again questioned, which motion was denied by the court. From this judgment and sentence so imposed by the court, the defendant seeks relief here by writ of error,...