State v. Burns

• Decision Date: 07 December 1951
• Docket Number: 987.,M.P.No. 986
• Citation: 84 A.2d 801
• Parties: STATE (CAMPBELL) v. BURNS. STATE (REX) v. BURNS
• Court: Rhode Island Supreme Court

84 A.2d 801

STATE (CAMPBELL) v. BURNS.

STATE (REX) v. BURNS

M.P.Nos. 986, 987.

Supreme Court of Rhode Island.

December 7, 1951.

John A. O'Neill, Pawtucket, for State, Campbell, Complainant.

William R. Goldberg, Pawtucket, for State Rex, Complainant.

James F. McCoy, Pawtuckett, for defendant.

CAPOTOSTO, Justice.

These are two petitions for certiorari to review the action of a justice of the superior court denying defendant's petition in each case for a change of venue under general laws 1938, chapter 496, § 21. The defendant stands charged with assault on Ambrose L. Campbell in one case and on Howard H. Rex in the other, hereinafter called the Campbell case and the Rex case respectively. The writs were issued and the pertinent records were duly certified to this court.

It appears in evidence that the defendant is a captain of police of the city of Pawtucket and that the alleged assaults were committed by him at voting places in that city on November 7, 1950 when the last general election was held in this state. The warrants were issued by the district court of the tenth judicial district, the jurisdiction of which is limited to the city of Pawtucket. Following separate trials in that court defendant was found guilty in the Campbell case on December 4, 1950 and in the Rex case on December 6, 1950, whereupon he appealed each case to the superior court. Thereafter the Rex case was assigned for trial by jury on May 21, 1951, but the Campbell case remained unassigned. The two petitions for a change of venue were filed by the defendant May 17, 1951.

In so far as pertinent, G.L. 1938, chap. 496, § 21, provides that whenever it shall be made to appear "to the satisfaction of the superior court" that by reason of local prejudice a party in any proceeding, civil or criminal, cannot have a full, fair and impartial "trial" in the court "for the county" where the same shall be pending, the court shall order such cause to be removed for trial to such other county as shall be deemed most fair and equitable for the parties. Following a full hearing on the merits each petition was denied and dismissed. The only question before us is whether the superior court abused its discretion in refusing to grant a change of venue.

The obvious purpose of the statute is to protect a party from prejudice in a trial by jury. It is clear to us that unless a case is actually or about to be assigned for trial the question of prejudice is premature, as any case may be terminated without a trial by jury in a number of different ways. Furthermore, by G.L. 1938, chap. 625, § 71, a person charged with a criminal offense may elect to be tried by a justice of the superior court sitting without a jury, in which case the question of prejudice cannot arise. In view of such possibilities it is our judgment that in the Campbell case, which was dormant when defendant filed a petition for a change of venue, such petition was plainly beyond the purpose and intent of G.L. 1938, chap. 496, § 21. The writ of certiorari in that case is therefore quashed.

The situation in the Rex case, which had been assigned for trial by jury, is quite different. In that case no question was raised either as to the propriety or timeliness of defendant's petition. There the matter in issue between the...