
    The People of the State of New York, Plaintiff, v. Victor Downs, Defendant.
    Supreme Court, Special Term, Suffolk County,
    May 13, 1943.
    
      George W. Percy for defendant.
    
      Fred J. Munder, District Attorney, for plaintiff.
   Hooley, J.

. Motion by defendant to effect a change of place of trial of an indictment from the county of Suffolk upon the ground that a fair and impartial trial cannot be had in that county. The indictment is for blackmail.

Some years ago the defendant was indicted in Suffolk County for the crimes of murder in the first degree and robbery in the first degree. The indictments were found by reason of the death and robbery of one Tuthill. The case was known as the ‘ ‘ Corn Doctor case.” Great publicity resulted in Suffolk County and in the 'metropolitan press with the result that throughout the county the cause of death of Tuthill, the indictments, the trial of this defendant, and his wife’s connection therewith, became the subject of intense interest and discussion. Neither the defendant nor his wife, who had also been indicted for murder, was convicted. The defendant thereafter was convicted of an assault upon another person and has served ten years in prison.

The years have apparently not served to dim the- interest of the people of Suffolk County in the affairs of this defendant as various influential citizens thereof, unacquainted with him, submit to the court their affidavits in which they indicate that the ends of justice demand that the tria) be had in some other county. Upon the argument, the Assistant District Attorney, while insisting that a fair and impartial trial might be had in Suffolk County, conceded that ninety-five per cent of the people thereof knew the defendant by reputation and that that reputation was unsavory.

It is not necessary here to relate in detail what happened upon the defendant’s trial for murder. Suffice it to say that because of technical difficulties which arose in the matter of presenting the proof the prosecution failed, despite the statement of the defendant’s wife to the District Attorney which described in vivid detail the death of Tuthill at the hands of defendant. This statement was given wide publicity.

Two of the prosecution witnesses to appear upon the trial of the present indictment are Hon. L. Barron Hill, County Judge of Suffolk County, and Stanley Fowler, a prominent leader of the Bar. Letters allegedly written by defendant to these two gentlemen are apparently the basis of the indictment. Throughout his years upon the bench Judge Hill has acquired a reputation for rectitude and unselfish public service. Most of the jurors in Suffolk County have come in contact with him and he has won their respect and confidence. In an ordinary case, the rights of any indicted defendant would be to some extent prejudiced when the issue appeared to develop between him and the respected County Judge. But when there is added thereto the additional facts that in this particular case the defendant is a man of extremely bad reputation and that such bad reputation is a matter of general knowledge throughout Suffolk County, the wide publication of the grim and sordid details of the murder, the dramatic occurrences at the trial which were given equal publicity, and the indication of a general feeling by the public that justice had not triumphed because of technicalities, a situation is presented which calls for the most careful consideration by this court of the facts presented on this application.

The lowest man in the community has a right to a fair and impartial trial. Not only must he have a fair trial, but the people of that community must believe that he has had such a trial. Nothing will create greater confidence in our courts than to surround each defendant with every possible safeguard to insure to him a trial in accordance with American traditions and our American way of life.

Upon all the papers before the court, it is apparent that in the county of Suffolk,, a rural county where the crime of murder is more rare than in urban counties and where occurrences such as are here presented are not soon forgotten, widespread publicity has been given to this defendant’s connection with the Tufhill case, that such publicity has been revived since his present difficulties occurred, and that there is a general prejudice against him which will interfere with his obtaining a fair and impartial trial.

Motion granted. The trial is transferred to Nassau County to be held on Jane 7, 1943.  