State v. Sasse

Lyon, J. 1. The first question submitted calls for a construction of sec. 4680, R. S. The defendant was originally tried in the Dodge county circuit court at the same term at which he was arraigned; and the petition for a change, of venue, although not interposed at the next term of that court, was interposed at the next term thereafter at which a hearing thereof could have been had. During the time-intermediate the arraignment and the interposition of the. petition for a change of the place of trial, the cause was, pending in this court, and such petition could not have been entertained at any intermediate term. The question is whether “ the next term succeeding that at which the accused shall have been arraigned,” means the next term of the trial court appointed by law, without regard to the condition and situation of the case, or does it mean the next term after the arraignment at which the petition might properly be presented to the court. After due consideration, we have concluded that we ought to give the statute the latter construction. . It seems to us that the purpose of the legislature was to give a person accused of crime the right to a change of the place of trial at any time [6] during two terms of the court, on presentation, during either of those terms, of the general affidavit of prejudice common alike to civil and criminal actions. This right can only be secured to the accused by giving the statute the construction above indicated. The construction is therefore really in the interest of the accused, and is an application of the rule that criminal or penal statutes must be construed strictly, in favor of persons charged with violating them. Had the circuit court of Dodge county refused to change the place of trial on the petition presented to it, the refusal would have been error. We hold, therefore, in this case, that the general affidavit oE prejudice made at the February term, 1887, of the Dodge county circuit court, was sufficient to authorize a change of the place of trial, and to confer jurisdiction of the case upon the circuit court of Fond du Lac county. In State v. Rowan, 35 Wis. 303, it was held that the application for a change of the place of trial was insufficient, because of non-compliance with sec. 4680, and hence that the court to which the cause was sent obtained no jurisdiction thereof. In that case the defendant was arraigned at one term, and tried at the next term, without interposing any petition for a change of the place of trial. Such petition was presented at a later term and after the cause had been before this court. It is perfectly clear that that case came within the provisions of sec. 4680. Hence it was held that the court to which the cause had been sent obtained no jurisdiction thereof because of the defect in the petition. There is some language in the opinion in that case suggesting a different construction of the statute than that here given. But what was there said upon that subject was quite unnecessary to the decision of the case, and we all now agree that the construction there suggested is not the correct one. We therefore answer the first and second questions in the affirmative. 2. It is clear that the waiver by the defendant of his right [7] to be present at the view is effectual, and that the court did not err in allowing the view to be had in his absence. Hence the third question must be answered in the negative. By the Court.— Let the foregoing answers to the questions of law submitted to this court be certified to the circuit court, to the end that the court may proceed to judgment in the case.