Wells v. State

• Decision Date: 03 May 1890
• Citation: 13 S.W. 737,53 Ark. 211
• Parties: WELLS v. STATE
• Court: Arkansas Supreme Court

13 S.W. 737

53 Ark. 211

WELLS v. STATE

Supreme Court of Arkansas

May 3, 1890

APPEAL from Yell Circuit Court, Dardanelle District, J. E. CRAVENS Special Judge.

Cause reversed and remanded.

Sam W Williams and J. P. Byers for appellant.

1. The court should have arrested the judgment, for, after the filing of a proper petition properly sustained for change of venue, the Yell circuit court had no further jurisdiction for the duty of the court was plain and admitted of no discretion.

The grounds upon which the court placed its refusal are wholly untenable; to require a man to be tried in a county whose inhabitants were so prejudiced against him was a violation of the statute and appellant's constitutional right. Mansf. Dig., sec. 2195; Art. 2, sec. 10, Const.

The case of Walker v. State, 35 Ark. 386, should be overruled. But it does not decide the question involved here. The statute and the constitution prescribe that the trial shall be removed from the county; and the making of two districts does not make a county. A trial by an impartial and unprejudiced jury is a constitutional right. Cooley, Const. Lim., p. 390 et seq., ch. 10.

2. Section 6, act December 15, 1875, has no application to this case. "May change the venue from one district to another," can apply only to civil cases; if intended to apply to criminal cases, it violates the constitution.

W. E Atkinson, Attorney General, and T. D. Crawford for appellee.

By act of December 15, 1875, the districts of Yell county were to be considered as separate and distinct counties. The act was held constitutional in Walker v. State, 35 Ark. 389. It was appellant's duty to have made his application in accordance with law. Const. 1874, art. 2, sec. 10. The application was defective; there was no abuse of judicial discretion, and the action is not reviewable.

OPINION

HUGHES, J.

The appellant was indicted for murder in the first degree by the grand jury in the Dardanelle district of Yell county, Arkansas, was arraigned and pleaded not guilty, and then filed a motion for a change of venue on the ground that the minds of the inhabitants of Yell county, where the cause was pending, were so prejudiced against him, that he could not obtain a fair and impartial trial therein, and concluded the motion by saying, "this applies also to Pope county." The motion was sworn to by defendant and three other persons. The court decided to overrule the motion unless so amended as to apply to the Dardanelle district of Yell county alone, and that, if so amended, a change of venue would be ordered. The defendant and his counsel refused to amend said motion, and the court overruled it, to which the defendant at the time excepted.

He was tried and convicted of murder in the first degree.

He filed a motion for a new trial, which was overruled, to which an exception was saved. He then filed a motion in arrest of judgment on the ground that the court, after the motion for change of venue had been filed, had no jurisdiction to try the cause, and should have made the order for the removal of it to some other county of that judicial district for trial. The motion in arrest was overruled, and the defendant excepted, tendered his bill of exceptions and appealed.

The first ground of the motion for a new trial was, that the court erred in not granting the change of venue. There were other grounds which we do not deem it necessary to notice, further than to say that the instructions appear to have been fair to the defendant.

Section 10, Art. 2, of the constitution provides that: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed; provided that the venue may be...