State v. Kindig

The opinion of the court was delivered by HoktoN, C. J. : It is insisted that the district court of Cheyenne county had no jurisdiction of this case on a change of venue from Decatur county because the [116] order of removal was made prior to' any plea to tlie information, and because the removal did not specify the cause therefor. Section 179 of the criminal code reads: ‘‘ Every order for a removal of any cause under the foregoing provisions shall state whether the same is made on the application of the party or on facts within the knowledge of the court or judge, and shall specify the cause of removal, and designate the county to which the cause is removed.” I. It .is claimed upon the part of the state that a plea of not guilty was entered before the application for removal of the cause was granted, but that the plea was unintentionally omitted from the record. This, however, is immaterial. It is held to be better practice to arraign the defendant, and require him to plead to the information before making an order for a change of venue; but where the defendant applies for the change, and has the benefit of arraignment in the county to which the cause is transferred, he has no right to complain that the change was made before his arraignment. (Hudley v. The State, 36 Ark. 237. See, also, Ex parte Cox, 12 Tex. App. 665.) As the removal was actually made upon the application of the defendant, and as he had the benefit of arraignment in Cheyenne county, there was no material error in transferring the case to that county for trial before the plea was entered. (The State v. Potter, 16 Kas. 80.) The better rule is that the statute should be literally complied with, and the ground for a change be fully spread on the record. But it appears in this case that the removal was actually made upon the written application of the defendant, and the showing made by him upon affidavits that he could not have a fair trial in the county where the information was filed. The [117] application of the defendant for a removal of the cause must be read in connection with the order of the court granting the same, and therefrom it appears that the removal was allowed upon the application of the defendant, and for the cause specified therein. II. It is next insisted that the district court of Cheyenne county committed error in entertaining jurisdiction of the cause after removal and requiring the defendant to plead to a certified transcript of the information. Not so. Nothing but a transcript of the record and proceeding is authorized to be transmitted by the district clerk to the county to which the case is removed. {The State v. Riddle, 20 Kas. 711.) III. .Tt is further insisted that the removal of the cause from Cheyenne county, in the seventeenth judicial district, to Thomas countj^, in the thirty-fourth district, was without authority of law. By § 10 of the bill of rights, a defendant in a criminal cause is guaranteed a trial by a jury of the county or district in which the offense is alleged to have been committed. Undoubtedly the provision securing to the accused a public trial within the county or district in which the offense is committed is of the highest importance. It prevents the possibility of sending him for trial to a remote district, at a distance from friends, among strangers, and perhaps parties animated by prejudices of a personal or partisan character. But a defendant may waive his constitutional right or j)ersonal privilege by his consent. (The State v. Potter, supra ; In re Holcomb, 21 Kas. 628.) Upon the part of the state it is insisted that the removal of the cause from Cheyenne county to Thomas county was made with the consent of the defendant, and that he cannot now complain. But wre do not so read the record. The defendant did not make any written or oral ap [118] plication for the removal of the cause to Thomas county or to any different district. After the cause had been removed to Cheyenne county, counsel for the defendant called the court’s attention to § 178 of the criminal code, and especially to the third subdivision thereof, which provides for transferring a case to a different district “where the judge is in anywise interested or prejudiced or shall have been counsel in the cause.” But when the court made an order removing the case to Thomas county, the defendant objected and had his exception entered of record. Again, 'when the case was called for trial in Thomas county, the defendant raised the question of the jurisdiction of the court, and objected to that court proceeding with the trial. Under ¶ 1965, General.Statutes of 1889, of the act concerning district courts, a judge pro tem. may be selected “when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit.” So, under the statute, a defendant may be tried before a judge pro teto., where the district judge is disqualified by interest or otherwise ; or he may, with his consent, have the cause removed to a different district. In this case there •was no express consent on the part of the defendant to have the cause removed from his distinct. The most that can be said is that he consented inferentially to such removal by calling the court’s attention to § 173 of criminal code. He did not expressly request that the cause be transferred to a different district under the provisions of that section. On the other hand, he expressly objected to the transfer. If counsel of the defendant misled the court at first in referring to § 173 of the criminal code, defendant is not concluded, because he objected to the order [119] to transfer. Before the order of removal was entered of record the court was fully informed that the defendant did not consent, but positively objected to .having his cause sent to a different district. The constitutional guaranty, securing to an accused a trial within the county or district in which the offense is committed, ought not to be annulled upon a mere inference or implication. Therefore, upon the record, we cannot say that the defendant consented to the removal of the cause to a different district, or that he waived his constitutional right to be tried in the district in which the offense is alleged to have been committed. Under the provisions of the constitution and the statute, the removal of the cause from Cheyenne county to Thomas county, against the objection of “the defendant, was without authority of law. The cause is pending in Cheyenne county, and all proceedings subsequent to the attempted removal from that county must be ignored. The case may proceed to trial in Cheyenne county, as if no removal had been attempted. The judgment will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed. All the Justices concurring.