Rattray v. State

Chalmers, J., delivered the opinion of the court. We pretermit a decision upon the various questions that arose upon the trial because we are of opinion that it was erroneous to have proceeded with the trial in Adams County against the objections of the accused and after the court in that county had decided that a fair and impartial trial could not be had there. The accused, by his own affidavit and that of two credible witnesses, satisfied the court that this was impossible, and thereupon the motion for a change of venue was sustained and the venue was changed to Jefferson County; but this order was accompanied with the requirement that the accused should pay all the costs of the term. The accused filed an affidavit that he was unable from poverty to make such payment or to give security therefor, and thereupon the court directed the trial to proceed in Adams County, to which the accused excepted. The statute with reference to the change of venue provides that the change of venue may be granted upon such terms as to costs in said cases as the judge may think right. But this must not be construed as authorizing the prepayment of costs as a condition precedent to the change when the judge is satisfied from the showing made that the change is essential to the having of a fair and impartial [382] trial. Such a construction would make the statute unconstitutional, because by Section 4 of Article XII of the constitution it is made the duty of the legislature to provide by law for the trial of persons in any county other than that in which the offense is committed, whenever, owing to prejudice, an impartial grand or petit jury cannot be impaneled in the county where the offense was committed. This guarantees, as a constitutional right, a change of venue where justice and impartiality demand it, and forbids the imposition of any pecuniary charge as a prerequisite. The statute must be construed, therefore, as authorizing the judge to impose any conditions as to costs that he may think fit, but such imposition can only be made effectual by a writ of Ji.fa. for the collection of the costs, as in case of other money judgments. In the meantime, the change of venue takes place at once, unless the order for it be vacated during the term upon grounds independent of pecuniary considerations. , It follows, therefore, that so much of the order in this case as required a prepayment of costs was null, and the succeeding trial, which was had despite the objections of the accused, Avas erroneous. The venue of the case must be changed to Jefferson County and a trial there had. Haglin v. Rogers, 37 Ark. 491; Ammons v. The State, 9 Fla. 530. The motion to quash the indictment was properly overruled. The alleged libelous matter was sufficiently set out. The question of the legality of the appointment of Judge North to the double position of chancellor and of circuit judge is raised only by argument in this court, but in no method whatever by the record, and therefore cannot be noticed. Reversed and remanded with directions to be transferred by change of venue to the Circuit Court of Jefferson County.