In re Application of Owen Oberst
| Decision Date | 06 June 1931 |
| Docket Number | 30,155 |
| Parties | In re Application of OWEN OBERST, by His Guardian, ED MARCUM, for a Writ of Habeas Corpus |
| Court | Kansas Supreme Court |
Decided January, 1931.
Original proceeding in habeas corpus.
Writ issued.
SYLLABUS BY THE COURT.
1. VENUE--Change in Criminal Cases--Necessity of Consent of Accused. R. S. 62-1322 does not give the district court authority to change the venue of a criminal prosecution pending before it without the consent of and over the objection of the defendant.
2. CONSTITUTIONAL LAW--Rights of Accused--Trial by Jury of County Where Offense Committed. Section 10 of the bill of rights of the constitution of Kansas guarantees to one charged with crime the right to be tried by a jury of the county where the offense is alleged to have been committed and any statute which contravenes that right is unconstitutional.
C. L. Aikman, of El Dorado, John Madden, John Madden, Jr., and L. C. Gabbert, all of Wichita, for the petitioner.
Roland Boynton, attorney-general, R. O. Mason, assistant attorney-general, R. C. Woodward, county attorney, and C. Glenn Morris, assistant county attorney, for the respondent.
OPINION
This is an original action in habeas corpus. Owen Oberst was charged with murder alleged to have been committed in Butler county. He pleaded guilty and was sentenced to the penitentiary. Subsequently he filed a motion to withdraw this plea of guilty. This was denied. He appealed, and the judgment of the district court was reversed and it was directed to proceed with the trial.
He was tried three times. Each trial resulted in the jury being discharged on account of not being able to agree upon a verdict.
When the case came on for trial for the fourth time the proceedings were had which are the basis for this action. The trial court at that time made an order reciting the various trials that had been had in Butler county, the length of time each trial had taken, and the number of jurors who had been examined at each trial. It was further recited that in each trial a number of men had been allowed to sit as jurors who were really not qualified. It was recited that a large amount of publicity had been given the case. The findings of the court ended as follows:
The court then ordered that the "said cause and the trial thereof be and the same hereby is removed to Elk county, in the thirteenth judicial district for the state of Kansas, and the venue of said action is changed to said Elk county." The order then provided for the removal of the body of petitioner to Elk county. The petitioner was present in court and by his attorneys objected to this removal. It should be noted here that Butler and Elk counties are in the same judicial district.
In due time the body of petitioner was delivered to the sheriff of Elk county. Whereupon this action was started. Upon the filing of this action petitioner was released on bond. The question in this case is, Can a change of venue of a criminal case be taken to another county in the same judicial district over the objection of the defendant and without his consent?
To answer this question it will be necessary for us to examine the constitution of our state.
The statute under which the court acted is R. S. 62-1322, and is as follows:
Petitioner contends that the only statute giving the court a right to order a change of venue is R. S. 62-1318, as follows:
Petitioner contends that as construed by the district court R. S. 62-1322 is unconstitutional. The particular provision of the constitution that it contravenes is section 10 of the bill of rights, which is as follows:
"In all prosecutions the accused shall be allowed . . . a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed."
An argument is made that the order of the court in this case does not comply with the provisions of R. S. 62-1322, but in view of the conclusion we have reached on the constitutional question it will not be necessary for us to decide that. At this time, however, it is proper for us to state that we have reached the conclusion that the court put the wrong interpretation on R. S. 62-1322, and the importance of the conclusion will become apparent at a later point in this opinion.
We shall decide, therefore, the sole question whether the district court has power to change the venue of a criminal case from the county where the crime is alleged to have been committed to another county in the state. Respondent argues that since the guaranty in the constitution is of a right to be tried by a jury of the county or district, that "district" means "judicial district" and since the change is from one county in a judicial district to another county in the same judicial district section 10 was not violated. It is urged that for this court to hold otherwise it will be necessary to hold that as used in the constitution the words "county" and "district" are synonymous. We think, however, that what such a holding would mean is that the word "district" in section 10 was used to describe something that no longer exists in our state, and that the word at the present time is virtually obsolete as used in section 10.
The writing of constitutions and the forming of governments thereunder is essentially an American institution. At the time of the separation of the thirteen colonies from the mother country it became necessary to formulate a system of government. The result was the constitution of the United States--probably the first time that a government had been founded on a single document. One feature of this document that makes it distinctive is that here was a group of men framing a constitution by which they expected to be governed. The first thought and care was that there were certain rights which they did not propose to surrender to this new government they were bringing into being. They were written into the federal constitution by the first ten amendments almost coincidental with its adoption by the states.
With the history of the adoption and ratification of the federal constitution before them the pioneers who left the territorial limits of the original thirteen colonies from time to time formed state governments and were admitted into the union. The rights of the states were defined by the federal constitution, but the framers of the constitution of the new states were familiar with the fact that as citizens they owed allegiance to and expected protection from two governments--the federal and the state. With this thought in mind, what is more natural than that the framers of the state constitutions should take care that the same rights should be guaranteed to the citizens by this new government they were bringing forth as were guaranteed them by the federal constitution? This they did. In the Ohio constitution it was called the bill of rights and in our constitution it was called the same. In each case the bill of rights constitutes the first articles presented to the constitutional convention. Almost the same language is used in all of them except in the federal constitution the guaranty as to trial by jury is by a jury of the state or district where the offense is alleged to have been committed, instead of county or district.
The story has been told many times about how families migrated from some of the original states, stopped for a generation perhaps or perhaps only for a few years and came on to Kansas, there to take part in that epic struggle that gave Kansas to the nation. With them they brought the general attitude toward government and mode of thinking of the older state. The bill of rights that was introduced and passed by the Wyandotte convention was taken, to a large extent, as we have seen, from the constitution of Ohio. (Proceedings of Wyandotte Convention, 272.) When section 10 of our bill of rights was proposed by the committee, practically as it appears in our constitution, it was adopted by the convention without a word of debate.
In an inquiry as to what was meant by the use of certain words a consideration of the men who wrote them, and of the time in which they were living, other acts and declarations of the same men, and the impression these acts and...
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