State v. Miles
| Citation | 43 Idaho 46,248 P. 442 |
| Parties | STATE, Appellant, v. IDA E. MILES, Respondent |
| Decision Date | 03 August 1926 |
| Court | Idaho Supreme Court |
JURY-CONSTITUTIONAL GUARANTY-APPLICATION FOR CHANGE OF VENUE-COUNTER SHOWING-STATUTORY PROVISIONS.
1. C S., sec. 8895, empowering district courts to change place of trial on application of state is not violative of Const art. 1, sec. 7.
2. Constitutional guaranty of right to "trial by jury" secures right as it existed under common law and territorial statutes in force at date of adoption of constitution.
3. On state's application, under C. S., secs. 8895-8897, for change of venue, counter showing by affidavit may be made in view of secs. 8888-8890, and, notwithstanding sec. 8902 allowing state appeal from order denying application.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.
Application by the state for change of place of trial in a criminal action. Application denied. Affirmed.
Affirmed.
A. H. Conner, Attorney General, and John W. Cramer, Assistant, for Appellant.
The district courts within their respective districts have power to change the place of trial in criminal cases, other than misdemeanors, upon the application of the state on relation of the county attorney of the county in which any indictment or information may be filed. (C. S., sec. 8895.)
If the court is satisfied from the application and affidavit that a fair and impartial trial cannot be had, an order must be made removing the action. (C. S., sec. 8897.)
The sufficiency, in both law and fact, of the application and supporting affidavits may be reviewed by the supreme court on appeal by the state from an order of the district court denying an application for change of place of trial. (C. S., sec. 8902.)
C. S., sec. 8895, is not unconstitutional and does not violate the right of trial by jury.
E. T. Knudson and Ezra R. Whitla for Respondent.
C. S., sec. 8895, is unconstitutional for the reason that it deprives persons accused of crime of a right guaranteed them by Const., art. 1, sec. 7, which provides that "The right of trial by jury shall remain inviolate." (People v. Powell, 87 Cal. 348, 25 P. 481, 11 L. R. A. 75.) Rebuting evidence or affidavits may be received and considered by the court in passing upon a motion for change of venue, and if the showings are conflicting the trial court's decision will not be disturbed on appeal. (State v. Breyer, 40 Idaho 324, 232 P. 560; State v. Hoagland, 39 Idaho 405; 228 P. 314; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Casey, 34 Nev. 154, 117 P. 5; State v. Tawney, 83 Kan. 603, 112 P. 161.)
A motion for change of venue is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless it affirmatively appears that such discretion has been abused. (State v. Hoagland, supra; People v. Vincent, 95 Cal. 425, 30 P. 581; State v. St. Clair, 6 Idaho 109, 53 P. 1; State v. Gilbert, 8 Idaho 346, 1 Ann. Cas. 280, 69 P. 62; State v. Breyer, supra; State v. Rooke, supra; State v. Millain, 3 Nev. 409; State v. Hunt, 91 Mo. 490, 3 S.W. 858; State v. Russell, 13 Mont. 164, 32 P. 854; State v. Rowland, 72 Iowa 327, 33 N.W. 137; Olive v. State, 11 Neb. 1, 7 N.W. 444; Edwards v. State, 2 Wash. 291, 26 P. 258.)
Respondent was charged with the crime of murder. A trial was had which resulted in a failure of the jury to agree upon a verdict. Thereafter the case was again set down for trial, whereupon the state made an application for a change of venue upon the ground that a fair and impartial trial could not be had in Kootenai county, the place where the offense was alleged to have been committed, which application was denied by the court. The appeal is by the state, on relation of the county attorney, from the order denying the application.
Respondent attacks the constitutionality of C. S., sec. 8895, whereby district courts are empowered to change the place of trial upon application of the state. Other questions are raised, but we shall first dispose of the constitutionality of the above section.
That portion of art. 1, sec. 7, of the constitution which is pertinent to the question before us is as follows:
"The right of trial by jury shall remain inviolate."
It is respondent's contention that the foregoing provision guarantees to persons accused of crime the absolute right to a jury trial within the county where the crime is alleged to have been committed, and respondent cites and relies upon to support her contention the case of People v. Powell, 87 Cal. 348, 25 P. 481, 11 L. R. A. 75, wherein it was held that the common-law right to a trial by jury meant a trial by a jury selected from the vicinage or county where the crime was alleged to have been committed, and that a section of the Penal Code of that state authorizing a change of venue on application of the district attorney and without the consent of the defendant, was unconstitutional and void. In a more recent case, Ex parte McDonald, 20 Cal.App. 641, 129 P. 957, the district court of appeals of California held that the word "vicinage" was to be interpreted as the county where the trial is had, and it was further held that in view of the interpretation given to the word "vicinage," there was no constitutional limitation upon the power of the legislature to determine the place of trial, a statute authorizing a trial where the defendant was apprehended being valid.
The rule is well established that the guaranty of right of trial by jury secures that right as it existed under the common law and territorial statutes in force at the date of the adoption of our constitution. (Christensen v. Hollingsworth, 6 Idaho 87, 96 Am. St. 256, 53 P. 211; Shields v. Johnson, 10 Idaho 476, 3 Ann. Cas. 245, 79 P. 391; People v. Burnham, 35 Idaho 522, 526, 207 P. 589.)
From an examination and analysis of the case of People v. Powell, supra, it is apparent that the decision was based upon the conclusion that at common law the right of trial by jury in the county or vicinage was unconditional, which conclusion was necessary in arriving at the result announced, in view of the statute. That is the precise point that we must determine also, for it is plain that if "the right of trial by jury" is an unqualified right to a trial by a jury of the county where the offense is alleged to have been committed, as counsel contend, then no act of the legislature can deprive a person of that right. But, if the right to a trial by jury in the county where the offense is alleged to have been committed is conditioned upon the possibility of a fair and impartial trial in that county, the constitutionality of C. S., sec. 8895, must be conceded.
The great weight of authority is opposed to the rule announced by the California court in People v. Powell, supra, and possibly one of the leading and best considered cases is that of Barry v. Truax, 13 N.D. 131, 112 Am. St. 662, 99 N.W. 769. There the constitutionality of a statutory provision similar to the one now under consideration was attacked under a section of the constitution of North Dakota analogous to our own. It was held that the right of trial by jury, as that right was known at the time of the adoption of the constitution, did not include an absolute right to a trial by jury of the county where the offense was committed, but that the right was conditioned upon the possibility of a fair and impartial trial being had in that county. It was pointed out that the contention that at common law the state had no right to change the venue did not accord with the rule of the common law. Early American cases as well as English decisions and texts upon the subject were quoted, and the court's position clearly sustained. To the same effect see also: People v. Peterson, 93 Mich. 27, 52 N.W. 1039; State v. Durflinger, 73 Ohio St. 154, 76 N.E. 291; State v. Holloway, 19 N.M. 528, 146 P. 1066; L. R. A. 1915F, 922; Hewitt v. State of Florida, 43 Fla. 194, 30 So. 795; People v. Vermilyea, 7 Cow. 108; People v. Baker, 3 Abb. Pr. 42.
Some states have upheld such statutes even in the face of constitutional provisions providing for a trial by jury "of the county and district." It was held in State v. Miller, 15 Minn. 344, that a statute authorizing a change by the state from a county in one judicial district to an adjoining county in an adjoining district was not unconstitutional. The court said, "that both constitution and law are but the affirmance of the common-law right of the defendant to an impartial jury of the county where the act was committed, subject to the right of the court to change the place of trial whenever such impartial jury cannot be had there." Commonwealth v. Davidson, 91 Ky. 162, 15 S.W. 53, is to the same effect.
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