State ex rel. Carpenter v. Backus

Siebecker, J. It seems clear that tbe right to a change of venue in this state is regulated by statute. This is declared by the decisions in this court on the subject. The effect of such decisions is stated in French v. State, 93 Wis. 325, 335, 67 N. W. 106: “The right to a change of venue depends entirely upon the statute. It is not guaranteed by Const, art. I, sec. I, or any other provision of the constitution. As the right exists only by virtue of the statute, a change of venue can be had only upon the terms the statute prescribes.” See Baker v. Slate, 56 Wis. 568, 14 N. W. 118; Boldt v. State, 72 Wis. 7, 38 N. W. 177; Oborn v. State, 143 Wis. 249, 126 N. W. 737. The difficult Question here presented involves the construction of the act establishing the municipal court of Racine county (sec. 10, ch. 72, Laws 1897). The original act provides : “The provisions of law applicable to changes of venue in the circuit courts of this state, shall be applicable to said municipal court, except that when the venue of any action shall be so changed, it shall be changed to the. circuit court of Racine county; and such change of venue shall not prevent the granting by said circuit court of a further change of venue as provided in section 2622, of the revised statutes of this state.” This act also provides that in case any “person charged upon indictment or information with a criminal offense shall have procured a change of venue to the circuit court of Racine county, ...” the party shall be committed or held to bail in circuit court, and the papers and copy of record and proceedings, properly certified, shall be transmitted to the circuit court, “which shall then have full jurisdiction of [183] tbe action.” Sec. 5, cb. 117, Laws 1899, re-enacted tbis section, but added after tbe above quoted words, “as provided in section 2622, of tbe revised statutes of tbis state,” a provision to tbe effect that tbe right to change tbe venue under sec. 2621 by tbe municipal court shall be “direct to tbe proper county for tbe trial of tbe action.” Tbe language of tbe original act which is retained in tbe amended act expresses in explicit terms that tbe law as embodied in tbe statute applicable to circuit courts “shall be applicable to said municipal court, except that when the venue of any action shall he so changed, it shall he changed to the circuit court of Racine county.” The exception clearly is a limitation on the statutes as they applied to tbe circuit courts and operates to prevent tbe municipal court from granting a change of venue in a criminal case to any court of another county, and thus tbe provision of see. 4679, Stats., applicable to circuit courts, providing that, when it appears that a fair and impartial trial cannot be bad in tbe county, tbe circuit court wherein tbe action is pending may send it to some adjoining county where a fair and impartial trial can be bad, is rendered inapplicable to tbe Eacine county municipal court. It appears from the clause immediately following that tbe legislature intended to preserve tbis right under sec. 4679, Stats., by providing for tbe exercise of tbis right pursuant to tbe provisions of sec. 2622, Stats., namely, “and such change of venue shall not prevent tbe granting by said circuit court of a further change of venue as provided in section 2622, of tbe revised statutes of tbis state.” Tbis section is in tbe chapter of tbe statutes regulating “Tbe Place of Trial of Civil Actions,” but it specifies in sub. (2) thereof a ground for change of venue in cases “Where there is reason to believe that an impartial trial cannot be bad therein” (tbe county), which is tbe same ground provided for in sec. 4679 in criminal cases. While tbis legislative method of providing for tbe exercise of tbis right in criminal cases pursuant to tbe provisions of sec. [184] 2622 is not a common practice, yet we are confronted with the fact that it did so, and the courts cannot nullify its action on account of the circuitous way employed to accomplish this object. We are persuaded that the legislature intended , to make the provisions of sec. 2622 applicable to all civil cases and to make the provision of sub. (2) thereof applicable to criminal cases that are embraced within sec. 4679 and transferred from the municipal to the circuit court for Racine county, and thus preserve to the accused the right of securing a change of venue on account of the prejudice of the people of the county. The provisions of the special act establishing this municipal court provide, in the last clause of the section here involved, that upon certification of a case to the circuit court such court “shall then have full jurisdiction of the action.” This clearly shows that the circuit court is to exert its powers to protect the accused in all his rights granted by the law. It necessarily follows that it devolves on the circuit court for Racine county, upon application of defendants, to direct that they be tried in some adjoining county if it appears to the court’s satisfaction that a fair and impartial trial cannot be had in Racine county. This brings us to the question of the effect of the order of November 26, 1916. The court denied the applications of defendants for a change of the place of tidal “without prejudice, however, to said defendants, and each of them, to renew said motions if it shall appear on the voir dire that the defendants, and each of them, cannot have a fair and impartial trial in Racine county, Wisconsin.” It is apparent that the court has not refused and does not refuse to act in the proceeding in the future. While the court in terms denies the applications, it expressly does so with the intent to further consider the matter “on the voir dire.” The substance and effect of the ruling is that the court declared that it does not “appear to the satisfaction of the court, by affidavits, that a fair and impartial trial cannot be had” in Racine county, but that he will consider the matter further in the light of the [185] facts relevant to tbe question disclosed on tbe voir dire, if tbe defendants desire further action. It is therefore established that tbe court does not refuse to act in tbe matter if it can legally do so in tbe manner as indicated, on tbe voir dire. This procedure may be somewhat novel, but it is well adapted to aid tbe court in its inquest to determine whether or not a fair and impartial trial cannot be bad in Racine county. Such inquiry upon tbe voir dire in no way adversely affects any of tbe defendants’ rights and will be completed before they are put in jeopardy. It is considered that tbe court properly withheld its final determination of tbe question upon tbe grounds specified in tbe order. Tbe statute, sec. 4679, provides that the court must he satisfied that a fair and impartial trial cannot he had in Racine county in order to justify a change of the place of trial of a case. This plainly indicates that a decision of this question by -a trial court cannot be assailed as erroneous unless it is shown that tbe court abused tbe discretion vested in it by tbe statute. Since tbe court in tbe instant proceedings has not finally determined tbe rights of defendants in tbe matter, no question of an abuse of its discretion is before us. Tbe record shows that tbe trial court has not finally denied tbe defendants tbe right to a change of tbe place of trial of tbe cases; that it expects to proceed with tbe inquest as to this matter upon tbe voir dire. Since tbe court has tbe power to entertain tbe applications under tbe statutes, as above shown, it follows that no case is presented which entitles relators to tbe writ of mandamus as prayed for, and judgment must be ordered quashing tbe writ, and that tbe record transmitted to this court in response to tbe writ of certiorari be returned to tbe circuit court for Racine county. All of tbe justices participated in this decision. By the Court. — It is so ordered.