State v. Holloway.

• Decision Date: 02 December 1914
• Docket Number: No. 1714.,1714.
• Citation: 146 P. 1066,19 N.M. 528
• Parties: STATEv.HOLLOWAY.
• Court: New Mexico Supreme Court

19 N.M. 528

146 P. 1066

STATE

v.HOLLOWAY.

No. 1714.

Supreme Court of New Mexico.

Dec. 2, 1914.Rehearing Denied March 10, 1915.

Syllabus by the Court.

No alleged errors, unless they are jurisdictional, will be considered, except those which are set out in the motion for a new trial.

The common-law rule upon the right to a trial by jury of the visne or neighborhood, if that be the rule in its strictest sense, has been long modified by legislation permitting a change of venue where an impartial jury was not obtainable in the county where the alleged crime was committed.

Where a trial by an impartial jury can be secured in the county where the crime is committed, the accused cannot be deprived of a trial there, even under the sanction of our legislation upon the subject of change of venue.

The constitutional guaranty of a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed is not of a right to be tried in the county, but in the county or district in which the offense is alleged to have been committed, if an impartial jury can be secured therein.

The power conferred upon district courts by this statute is one which ought to be exercised with great care and deliberation; and a change of venue, on behalf of the people, should be made only after a showing which convinces the court that public sentiment is in such a state as to render improbable a fair and impartial trial.

Held, by section 26 of chapter 57, Laws of 1907, it is provided that the stenographer shall file the transcript of testimony with the clerk of the court in which the action was tried, and thereupon either party may give five days' notice to the opposite party of his intention to apply to the judge to have the transcript signed and sealed as a bill of exceptions.

The facts urged in support of a motion for a new trial upon the ground that the jury was allowed to separate, unsupported by proof of such facts by affidavit, or otherwise, and not borne out by the record, is an insufficient showing, and does not entitle the defendant to a new trial upon such ground.

Appeal from District Court, Dona Ana County; E. L. Medler, Judge.

H. S. Holloway was convicted of embezzlement, and appeals. Affirmed.

Appellant was indicted in the district court for Otero county and charged with embezzlement of $3,500, which came into his hands by virtue of his employment as cashier of the Citizens' State Bank of Tularosa. Upon motion of the state for a change of venue, the court transferred the trial of the cause to Dona Ana county, where the appellant was tried and found guilty. From that verdict and the judgment of the court appellant appealed.

Held: By Sec. 26, of Chap. 57, Laws of 1907, it is provided that the stenographer shall file the transcript of testimony with the clerk of the court in which the action was tried, and thereupon either party may give five days notice to the opposite party of his intention to apply to the judge to have the transcript signed and sealed as a bill of exceptions.

W. H. H. Llewellyn, of Las Cruces, C. P. Johnson, of Los Angeles, Cal., and J. F. Bonham, of El Paso, for appellant.

Ira L. Crimshaw, Asst. Atty. Gen., for the State.

HANNA, J.

[1] The first point made by appellant is that the indictment is defective; several alleged defects being pointed out. The first being with respect to alleged insufficiency of proof as to lack of knowledge on the part of the grand jury as to the Christian name of the defendant. This can hardly be said to go to the insufficiency of the indictment. We assume that a second point is made, though this is not clear from appellant's brief, that there is an insufficient allegation as to the charge of the indictment as to the money embezzled. These objections, however, not going to the jurisdiction of the trial court over the parties or subject-matter, and being raised here for the first time, will not now be considered. The grounds here urged, in this connection, were not assigned as grounds of the motion for a new trial, and as was held by our territorial Supreme Court in the case of U. S. v. Cook, 15 N. M 124, 103 Pac. 305:

“No alleged errors, unless they are jurisdictional, will be considered, except those which are set out in the motion for a new trial.”

It may be urged that appellant has raised the question of whether the indictment states an offense or not and in so doing is urging a jurisdictional question; it being contended by appellant that the “indictment attempts to charge and is for straight larceny or there are in one count in the indictment two crimes attempted to be charged--larceny and embezzlement.” Our statute, under which this indictment was drawn (section 1122, C. L. 1897), defines the crime of embezzlement and declares it to be larceny. The indictment very closely followed the language of the statute, and therefore charged the crime of embezzlement.

The facts here, while not closely resembling those of the case of Territory v. Hurt, 16 N. M. 152, 113 Pac. 623, are analogous thereto, and we refer to that opinion, by Mr. Justice Parker, in support of our conclusion that the count is not duplicitous.

[2][3][4] The next and essentially important point in this case is that the granting of a motion for a change of venue, applied for by the state, violated the constitutional right of appellant to a fair and impartial trial by a jury of the county or district where the offense was alleged to have been committed. The theory of this contention is based upon the proposition that sections 2879 and 2881, C. L. 1897, in so far as they confer upon the state the right to a change of venue, are in conflict with that portion of section 14 of article 2 of the state Constitution which provides:

“In all criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”

It is admitted that this question is properly before us and not subject to objections here urged against the bill of exceptions to be later considered in this opinion.

We are of the opinion that the provisions of the two sections referred to are general in their scope, and do not limit the right to apply for a change of venue to the defendant alone. By appellant it is contended that our constitutional provision quoted, supra, is declaratory of the common law, which affords the accused an absolute right to a trial by a jury of the county wherein the crime is alleged to have occurred; that the word “district,” in the constitutional provision, cannot be given any force or effect; that no change of venue can be granted to the state, without the consent of the accused; that the statute cannot enlarge the Constitution, nor take away the right guaranteed by the Constitution.

By the Attorney General it is urged that the Constitution must be interpreted by the same rules as are used in the interpretation of statutes, and that the cardinal rule is to discover the intention of the constitutional convention; that the statute does not limit the right to a change of venue to the accused person; that the word “district,” appearing in the constitutional provision, was to have a broader meaning than “county,” and that some meaning must be given it; that the constitutional guaranty presupposes that a fair and impartial jury can be obtained and would not apply where it is adjudicated that a fair and impartial jury cannot be obtained in the county; that the common law gave the accused an absolute right to a jury trial within the county where the offense was alleged to have been committed, but that this rule of the common law was qualified in cases where an impartial jury could not be obtained, in which event the crown had a right, as a matter of necessity, and to enforce the spirit of the right of the accused to an impartial jury, to change the venue to a county wherein such conditions did not exist; that the record in this case is conclusive that an impartial jury could not be obtained in Otero county, and therefore the very premise of the right to invoke the constitutional guaranty is absent, and the statute, in such cases, cannot properly be said to conflict with the constitutional provision cited.

Concededly there is a conflict of authority upon this question, and our attention is directed to numerous authorities more or less supporting each contention, all of which we have examined. It is unnecessary to review all of these authorities, in this opinion, and reference will be made to only those more nearly in point.

In the case of In re Nelson, 19 S. D. 214, 102 N. W. 885, the Supreme Court of South Dakota held, in construing a provision of the Constitution, similar to ours now under consideration, that the word “district” must be held to mean the trial district or territory within which the jury is summoned. This holding finds support in the following cases: People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75; Olive et al. v. State, 11 Neb. 1, 7 N. W. 444; Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629; State v. Knapp, 40 Kan. 148, 19 Pac. 728; State ex rel. Scott v. Crinklaw, 40 Neb. 759, 59 N. W. 370.

It is to be observed in the consideration of the foregoing cases that the common-law right of the defendant to a trial by a jury of the visne, or neighborhood, was the basis of the ruling in each, and that no exception to the rule was considered. If there be no exception to the rule, it might well be argued that the state would not be entitled to a change of venue, although it might be impossible to secure an impartial jury in the county where the crime was committed. In other words, should it be found that a strong prejudice existed in favor of the accused in that venue, could the defendant be heard to insist upon an alleged right to a partial jury and urge in support of this right the constitutional guaranty of an impartial...