People v. Peterson
| Decision Date | 28 July 1892 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. PETERSON. |
Error to circuit court, Menominee county; CLAUDIUS B. GRANT, Judge.
Indictment against Ida Peterson for murder. From a judgment of conviction, defendant brings error. Reversed.
B J. Brown and E. P. Royce, (H. O Fairchild, of counsel,) for appellant.
A A. Ellis, Atty. Gen., F. D. Mead, Pros. Atty and R. C. Flannigan, for the People.
The respondent, in September, 1887, was convicted in the circuit court for the county of Menominee of the crime of manslaughter, and sentenced to the Detroit house of correction for the period of 13 years. The information charged her with the murder of her husband, Alfred Peterson, on January 30, 1887, at Baldwin, in the county of Delta. Two trials were had before a jury in Delta county, and in each case the jury disagreed. Upon application of the prosecuting attorney of Delta county, the circuit judge of that county granted a change of venue to the county of Menominee.
The first question upon this record is whether or not the court had jurisdiction upon the application of the state to grant the order transferring the case out of that county into another county for the purpose of trial. The showing made for a change of venue was that two trials had been had in Delta county, in each of which the jury had disagreed. This was made to appear by the affidavit of the prosecuting attorney, and he further stated, as shown by the affidavit, as follows: "The murder with which the said respondent is charged with having committed was, and still is, a subject of deep interest to the people of said county; that the papers in said county, of which there are three, have discussed the alleged facts from time to time more or less fully; that the trials of said cause already had, have attracted the attention of the people generally; that the citizens of the county have attended each of the trials in large numbers; that the facts and circumstances in said cause are so well known and have been so fully discussed by the inhabitants of the county, and more especially by the inhabitants of the city of Escanaba,-the county seat of said county,-that the deponent believes it will be impossible to obtain a fair and impartial jury in said county to try said cause." It cannot be said but that the question rested within the sound discretion of the trial court to judge and determine the sufficiency of this showing for a change of venue, if, under the constitution and statutes of the state, the court has the right, without the consent of the respondent, in a criminal prosecution, to change the venue and transfer the trial into another county from that in which the offense is charged to have been committed. The constitution of this state, by sections 27, 28, art. 6, provides, (section 27:) "The right of trial by jury shall remain, but shall be deemed to have been waived in all civil cases unless demanded by one of the parties," etc. Section 28: "In every criminal prosecution the accused shall have the right to a speedy and public trial, by an impartial jury. * * * It will be observed that our constitution contains no express provision as to the place of trial of offenders, as do the constitutions of some of the other states. The constitution of Wisconsin provides that persons accused of crimes shall be entitled to "a trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law." It was held by the supreme court of that state in Wheeler v. State, 24 Wis. 52, that a change of venue could not be granted by the court against the objection of the respondent. The question has never before arisen in this state. It was said, however, in Swart v. Kimball, 43 Mich. 449, 5 N.W. 635, by Mr. Justice COOLEY: "It has been doubted in some states whether it was competent even to permit a change of venue, on the application of the state, to escape local passion, prejudice, and interest;" citing Wheeler v. State, supra. Mr. Justice COOLEY, however, remarked in the same case, after the statement above quoted: "This may be pressing the principle too far." There can be no doubt that it was the intent of the framers of the constitution of this state, in providing that "the right of trial by jury shall remain," that such right of trial by jury was to remain as complete and certain as the right existed at the common law. The legislature, in defining the powers of the several circuit courts, provided that "each of said courts, upon good cause shown, may change the venue in any cause pending therein, and direct the issue to be tried in the circuit court of another county," etc. It is provided by the same section of the statute that the court to which such cause shall be removed, shall proceed to hear, try, and determine the same, but that, in criminal cases so transferred, the court awarding sentence shall direct that the defendant be imprisoned in the common jail of the county in which the prosecution commenced. It is further provided by the same section of the statute: "And, when there shall be a disagreement of the jury on the trial of any criminal cause in the circuit court to which the cause was ordered for trial, the circuit judge before whom the same was tried, if he shall deem that the public good requires the same, may, upon cause shown by either party, order and direct the issue to be tried in the circuit court of another county in the state." How. St. � 6468.
It will be seen that by this statute the circuit courts are authorized to award a change of venue in all cases upon cause shown. This statute is but declaratory of the common-law power vested in the circuit courts of this state. It is said by Bishop, in his work on Criminal Procedure, that the change of venue is usually ordered on application of the prisoner, first giving notice to the prosecuting officer, and then supporting the application by affidavits; but it may equally be ordered, in the absence of any provision of written law to the contrary, when applied for by the representative of the government. 1 Bish. Crim. Proc. � 113. In support of this doctrine is cited People v. Webb, 1 Hill, (N. Y.) 179; People v. Baker, 3 Parker, Crim. R. 181. In People v. Webb, supra, it was held that a change of venue might be awarded by the court on application of the state, on motion of the public prosecutor, if it appear that a fair and impartial trial could not be had in the county where the indictment was found. We think it is well settled that, where there is no constitutional provision fixing the vicinage within which the trial must be had, the rule of the common law must prevail, unless changed by statute, and that under their common-law powers the circuit courts have the right, upon cause shown, to change the venue upon the application of the people. The court was not in error, upon the showing made, in directing a change of venue for the trial to the county of Menominee.
It appeared upon the trial that the respondent, for several years before her marriage, had led a somewhat irregular life and was until within a short time previous to her marriage an inmate of a house of prostitution at Escanaba and other places. She married the deceased in the fall of 1886, and lived in Escanaba two or three months, and about two weeks previous to the homicide went to live with her husband in the house of one Peter M. Peterson, some four miles from Brampton, where the deceased had work. On the night the homicide was committed the only inmates of the house were Peter M. Peterson, the respondent, and her husband. Mrs. Peterson and her husband slept in a bedroom below, Peterson sleeping on the floor above. The deceased was killed about 5 o'clock in the morning by a blow from an axe or some other sharp instrument upon the side of his head, leaving a wound extending from the right eye to his ear. Peter M. Peterson was one of the principal witnesses in the case. His testimony tended to show that the respondent and her husband had been drinking the night before, the respondent becoming considerably intoxicated and quarrelsome, her husband having some difficulty in controlling her; that in her drunken frenzy in the evening she had threatened her husband with violence; that respondent and her husband slept together in the same bed, and during the night he had been frequently disturbed and kept awake by their quarreling; that about 5 o'clock in the morning the respondent called to him for help, claiming that her husband had done away with himself; that, upon descending to the room below, he found Alfred Peterson with the wound upon his head, as above described, in a dying condition, and the respondent with her nightdress bespattered with blood; that he returned to his chamber for his clothing, intending to summon assistance,-as importuned by the respondent to do,-and when he descended found that the respondent had left the house, and gone to a neighbor's, and accused him of the crime. The axe with which the blow was evidently struck was found subsequently where it had been thrown into the snow some distance from the house. The respondent was sworn as a witness in her own behalf upon the trial, and testified that during the week previous to the homicide Peter Peterson had importuned...
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