Caperton v. Bowyer

Brown, President. This was a motion for a change of venue upon the allegation that the defendant would not have a fair trial because of prejudice against him. [178] In support of the motion are tbe affidavits of a number of witnesses, taken without notice, stating substantially that, in the opinion of the affiants, the defendant could not have a fair trial by any jury likely to be selected in the county; aud in opposition to the motiou are the affidavits of a number of witnesses, taken also without notice, to the effect that, in their opinion, no such prejudice exists among the jurors or voters of the county as to prevent their doing justice to the defendant upon the evidence adduced in the case. The court, upon consideration of the affidavits and counter affidavits filed, and the circumstances of the case, in a written opinion, declared that it could not come to the conclusion that impartial justice could not be done to the defendant by a jury of the county, especially as the court in every instance, when applied to by the defendant, had directed a special jury to be empaneled under the 25th section of Code of 1860, p. 691, and in all such cases subjected each juror to the sifting test propounded by sec. 21; and that the court had no reason, from the character of the verdicts already rendered against the defendant, in other cases at that term, or otherwise, to believe that he could not obtain a fair and impartial trial of this case in the county; and that it ivould occasion great inconvenience, amounting almost to a denial of justice to the plaintiff’, to send the case to another county, under the circumstances of the case as stated in the said opinion. And the court overruled the motion for a change of venue. To this ruling the defendant excepted, and the same is assigned for error here. In the case of Ingersoll vs. Wilson, 2 W. Va. Rep., 59, and Ott vs. McHenry, idem 73, the evidence was all on one side, and the fact not disputed, that a fair trial could not probably be had before a jury of the county; but in this case the evidence is conflicting, and the case one which, in the opinionof the court, is entitled to consideration. There is no error in the refusal of the court to change the venue in this case. And the verdict of the jury, upon [179] the facts of the case, is moderate in amount, and gives no indication of the prejudice alleged, but rather corroborates the opinion of the court in the premises. The other points relative to the alleged defence of belligerent rights, and the President’s pardon to the defendant for complicity in the rebellion, and the alleged unconstitutionality of the act of March 4th, 1865, prohibiting the computation of the time of the war within the period of limitation of actions, and the questions of pleading, &c., have all been determined and disposed of in the case of Caperton vs. Martin, infra. There is, however, another point raised in this case not made in the case against Martin, and that is the removal of the court to the Salt Sulphur Springs, for the reason assigned in the order of court: that the court house was then undergoing repairs, and was unfit to be occupied. The case comes within the provision of the statute on the subject, in the Code of 1860, and the objection to the removal was properly overruled. The judgment, therefore, of the court below, must be affirmed, with costs and damages to the defendant in error. The other judges concurred. Judgment aeeirmed.