State v. Durflinger

• Decision Date: 22 December 1905
• Docket Number: 9705
• Citation: 76 N.E. 291,73 Ohio St. 154
• Parties: State v. Durflinger.
• Court: Ohio Supreme Court

76 N.E. 291

73 Ohio St. 154

State v. Durflinger.

No. 9705

Supreme Court of Ohio

December 22, 1905

Change of venue in criminal cases - May be had upon application of prosecuting attorney on behalf of state, when - Section 7263 Revised Statutes, not repugnant to section 10, article I Ohio constitution.

1. Under authority of section 7263, Revised Statutes, regulating the change of venue in criminal cases, the court having jurisdiction of the cause In the county of the offense, If it be made to appear to the court that a fair and Impartial trial cannot be had therein, may, upon application of the prosecuting attorney on behalf of the state, direct that the cause be tried In an adjoining county.

2. Said section thus construed, is not repugnant to section 10 of article 1 of the constitution of Ohio.

The petition of relator in this case is an original petition in this court, the averments of which are as follows: "Now comes the relator, C. R. Hornbeck, and, for his cause of action herein says:

"That he is the duly elected, qualified and acting prosecuting attorney within and for the county of Madison, Ohio, and that the defendant, S.W. Durflinger, is the duly elected qualified and acting judge of the court of common pleas within and for the fifth district of the state of Ohio and holds the terms of the court of common pleas within and for the county of Madison.

"That at the May term of said court of common pleas, 1905, within and for said county, the grand jury returned an indictment against one Jacob McCartney for murder in the second degree to which indictment, after being arrested on a warrant duly issued thereon, the said Jacob McCartney has entered a plea of not guilty, and upon which issue the cause is now pending in said court for trial. Thereupon at said May term of said court this relator being fully satisfied that a fair and impartial trial of the said Jacob McCartney on said indictment could not be had in the said county of Madison, made application on behalf of the State, in writing to said court, the said defendant then presiding, under and by virtue of the provisions of section 7263 of the Revised Statutes of Ohio, for a change of venue and for an order that the said Jacob McCartney be tried on said indictment in a county adjoining the said county of Madison.

"That said application came on for hearing before the said S.W. Durflinger, as judge of said court as aforesaid, who thereupon refused to consider the said application and refused to hear any evidence thereon and refused to pass upon the merits of the same for the sole and only reason that in the opinion of the said S.W. Durfnnger the State of Ohio was not entitled under the constitution and laws of the state to a change of venue in a criminal case.

"Wherefore, relator prays that a writ of mandamus issue against the said S.W. Durfnnger commanding him to proceed to hear and determine said application for a change of venue on its merits, and also asks all other proper relief." To this petition the defendant interposed the following demurrer: "Now comes the defendant and demurs to the petition and application of the plaintiff herein for the reason that the same does not state facts sufficient to constitute a cause of action against the defendant." Upon this demurrer, which challenges the right of relator to the relief prayed for, this cause is now submitted.

Mr. Wade H. Ellis, attorney general, for plaintiff; Mr. J. M. Sheets and Mr. W. H. Miller, of counsel, cited and commented upon the following authorities:

Article 1, sec. 10, Const.; Bishop's Criminal Procedure, sec. 68; art. 1, secs. 73 and 75a; 1 Chitty's Criminal Law, 201; 12 Cyc., 230; People v. Powell, 11 L.R.A. 75; State ex rel. v. McCarty, 52 Ohio St. 363; State v. Myers, 10 Dec. Re., 397; 21 W. L. B., 57; State v. Arrison, 10 Dec. Re., 379; 20 W. L. B., 474; People v. Peterson, 93 Mich. 27; People v. Fuhrmann, 103 Mich. 593; Berry v. Truax (N. D.), 65 L.R.A. 762; Mischer v. State, 41 Tex. Crim. Rep., 212; Cooley's Const. Lim., 319; Williams v. State, 12 Ohio St. 622; Cancemi v. People, 18 N.Y. 128; Hewitt v. State, 43 Fla. 194; 3 Blackstone, 383; King v. Nottingham, 4 East, 208; People v. Webb, 1 Hill, 179; People v. Vermilyea, 7 Cow., 139; King v. Harris, 1 William Blackstone, 378; People v. Baker, 3 Abb. Pr., 42; King v. St. Maryan, 7 Term Rep., 735; Brown v. State, 8 Blackford, 561; Hill v. People, 16 Mich. 351; State v. Everett, 14 Minn. 447; State v. Carman, 63 Ia. 130; Montana v. Ah Wah, 4 Mont. 149; sec. 7263, Rev. Stat.

Mr. John A. Lincoln, for defendant; Mr. John F. Locke and Mr. James F. Bell, of counsel, cited and commented upon the following authorities:

Article 8, sec. 11, Const. 1802; art. 1, sec. 10, Const.; 1 Debates of Ohio convention, 191; art. 1, sec. 10, Const. 1851; State v. Arrison, 10 Dec. Re., 379; 20 W.L.B., 474; Osborn v. State, 24 Ark. 629; People v. Powell, 87 Cal. 348; Kirk v. State, 1 Coldw., 344; Wheeler v. State, 24 Wis. 52; State v. Howard, 31 Vt. 414; Ex parte Rivers, 40 Ala. 712; State v. Knapp, 40 Kan. 148.

CREW J.

The single inquiry suggested by this record is, can the trial of a criminal cause in this state, be removed from the county in which the offense is alleged to have been committed, to an adjoining county within the state, upon the application of the prosecuting attorney and without the consent and against the will of the defendant, when it shall be made to appear to the court having jurisdiction of the cause in the county in which the crime was committed, that a fair and impartial trial cannot be had in the latter county.

Section 7263, Revised Statutes of Ohio, provides as follows "All criminal cases shall be tried in the county where the offense was committed, unless it appear to the court, by affidavits, that a fair and impartial trial can not be had therein; in which case the court shall direct that the person accused be tried in some adjoining county." This statute, it will be observed, is general and comprehensive in its terms, and does not, either expressly or by implication, restrict the right to apply for, or to have, a change of venue in a criminal case, to the defendant. But the effect of the language employed in this section, giving to the same its natural import, As to confer such right equally upon the state and the defendant. It must therefore be conceded, that unless this statute is repugnant to, and in conflict with section 10 of article 1 of the constitution of Ohio, that the State equally with the defendant may in a proper case, under favor of its provisions, apply for and have a change of venue in a criminal cause. Article 1, section 10 of the constitution of this state, guarantees to the party accused, "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." Whether, then, section 7263, Revised Statutes, in so far as it authorizes a change of venue in a criminal case upon the application of the state, is unconstitutional, because in conflict with this provision, must and does necessarily depend upon the nature and extent of the right guaranteed and secured to the accused, by this provision of the constitution. If as contended by counsel for defendant, the words "county" and "district" as employed in this provision, in defining the rights of the accused with respect to the place of trial, are merely synonymous words, and the right therein given and secured to the accused is the absolute, unqualified right to be tried in, and by a jury of, the county where the offense is alleged to have been committed, and if as claimed, a defendant in a criminal case cannot under any circumstances, unless he consent thereto, be tried in a county other than that in which the crime was committed, then clearly, if this be the organic law, the legislature is without authority to abridge or deny such right, and section 7263, in so far as it authorizes and permits a change of the place of trial upon application of the state, must be held to be unconstitutional and void. If however, within the meaning of this provision of the constitution, the right guaranteed to the accused is not an absolute right to be tried in all cases by a jury of the county in which the offense is alleged to have been committed, but is a qualified right, subject to and conditioned upon the possibility, that a fair and impartial trial can be had in that county, then and in that event, section 7263 although authorizing a...