
    SUPREME COURT—APP. DIVISION—FIRST DEPT.,
    February 16, 1912.
    THE PEOPLE v. CHARLES H. HYDE.
    (149 App. Div. 131.)
    (1.) Tbial—Change of venue.
    A defendant may apply for a change of the place of trial of a criminal action on the ground that a fair trial cannot be had in the county where the venue is laid.
    (2.) Same—Judicial discbetion.
    Whether or not the application should be granted is to be determined by the exercise of judicial discretion and each ease must be decided upon its own facts. It is enough if the court can find that in all human probability such a condition exists.
    (3.) Same—Peejudiced public.
    Where a defendant has made three applications for a speedy trial in the county where the indictment was found and has succeeded in: procuring a removal of his’case to the Court of General Sessions on the ground that the Supreme Court would adjourn for the summer months and has urged the vacating of a stay which had been granted, the court on his motion to change the place of trial may look upon the precedent publications upon which he now relies to show a prejudiced public from which a fair jury could not be drawn in the same light that the defendant did when strenuously insisting upon a speedy trial and may confine its examination to matters occurring thereafter.
    Appeal by the defendant, Charles H. Hyde, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8 th day of January, 1912, denying the defendant’s motion for a change of venue.
    
      John B. Stanchfield, for the appellant.
    
      Robert C. Taylor, of counsel (Robert S. Johnstone with him on the brief), Charles S. Whitman, District Attorney, for the respondent.
   Clarke, J.:

On May 11, 1911, a superseding indictment was found by the grand jury of the county of Mew York charging the defendant,, then chamberlain of the city of Mew York, with the crime of bribery in two counts, and in two further-counts with the offense of asking, receiving and agreeing to receive a gratuity for performing an official act. To this indictment he plead not guilty.

On June 5 th the defendant made a motion before the April term, continued, of the Criminal Term of the Supreme Court to-fix a day for trial, which was opposed by the district attorney on the ground that the ends of justice required that the cases of People v. Reichmann and People v. Cummins, in which indictments had been found prior to that against the defendant, should, be tried in the order stated and prior to the trial of the case-against the defendant. The presiding justice denied the motion, with leave to renew at the June Criminal Term. On June?th the same motion was made before the June term of the -Criminal Term of the Supreme Court and was opposed by the district attorney upon the same grounds and was also denied by the justice there presiding.

On June 15th the trial of People v. Reichmann began before-the April term, continued, and said Reichmann was found guilty on the 28th day of June. On the 29th of June the defendant moved before the June term of the Criminal Term of the Supreme Court for an order transferring the indictment to-the Court of General -Sessions of the city and county of Mew York for trial. On the 13th day of July the justice there presiding granted the motion. Thereafter the district attorney served a notice of appeal from said order, and on the 15th of July an order was granted by the presiding justice of the Appellate Division staying the trial of said action until after the hearing and determination of the said appeal. On the 27th of July a motion was argued before the presiding justice for an order vacating said stay, which was denied. The appeal was dismissed by an order of this court on November 3, 1911, and on November 6th an order was made by the Supreme Court transferring the case for trial from the General Sessions back to the Supreme Court.

On October 17th the case of People v. Cummins was brought on for trial in the Supreme Court, April term, continued, and was continued until November twentieth, on which day the jury found a verdict of guilty and Cummins was sentenced on said verdict on the twenty-fourth of November. On said day the district attorney made a motion to have the case of People v. Plyde set down for trial and fix a day therefor, and the court ordered that the case be set down for trial at the January term, and the 2d day of'January, 1912, was fixed as the day therefor. On December 28, 1911, the district attorney served a notice of motion for a special jury, returnable at the Criminal Term of the Supreme Court on January 2, 1912.

On December 26, 1911, the defendant made a motion, returnable at Special Term, Part 1, on January 5, 1912, for an order of removal of said criminal action to a term of the Supreme Court held in and for some other county in the State of New York, upon the ground that a fair and impartial trial could not be had by said defendant in the county of New York. The said motion having been denied by the Special Term, the defendant appeals.

To sustain his claim that he cannot have a fair and impartial trial in the county of New York the appellant has submitted voluminous affidavits and a large mass of newspaper clippings. The claim is made that the extensive publications in the public prints of articles referring to him have created such a prejudicial atmosphere in the community that a fairminded jury cannot be impaneled to try him upon the indictment found against him; that the members of any jury impaneled for that •purpose will be so affected that'they will not observe the fundamental rules of law in a criminal case, that the defendant ie presumed to be innocent until proved guilty, and that he is entitled to the benefit of a reasonable doubt upon every material point in the case.

The defendant had a right to make this motion. It is expressly provided for in section 344 of the Code of Oriminal Procedure. In People v. McLaughlin (150 N. Y. 365) the court said: “The right to remove the place of trial from one county to another, where a fair and impartial trial cannot be had in the county where the indictment is pending, has long •existed. It existed at common law, and was subsequently incorporated into the statutes of the State. The provisions of the Oode of Oriminal Procedure upon the subject have been evolved from previous legislation and, so far as they extend, now contain the rule of law governing such an application. * * * That the right thus given is a substantial one and h.as always been regarded as of great importance to a defendant, is manifest not only from the time it has existed, but also from its paramount necessity to fairly protect his just rights and interests. The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury, is a fundamental principle of criminal jurisprudence.”

Whether or not the application should be granted is to be ■determined by the wise exercise of judicial discretion, and each case must be decided upon its own facts. Of course there can .be no certainty established in regard to such a future event. .It is enough if the court can find that in all human probability such a condition exists. In People v. Georger (109 App. Div. 111) Mr. Presiding Justice McLennan said: “Without going into detail as to the character of the opinions expressed, all to the effect that the defendant was culpable and wholly responsible for the difficulties in which the bank was involved, it is sufficient to say that by the quotations from the public press contained in the record, from the opinions of parties interested, assembled to consider the situation, from the expressions of citizens who met and casually discussed the matter, it would seem that the community was practically a unit in concluding that the defendant had been guilty of serious wrongdoing and which resulted in or caused the failure of the bank.”'

If this court was satisfied that a fair and impartial jury could not be obtained in the county of Hew York to try the defendant upon the indictment found against him, “that the community was practically a unit in concluding” him guilty, it would be its duty—and it would not hesitate—to reverse-the order appealed from and grant the motion for a change of venue. But we reach no- such conclusion upon this record. It is true that the defendant, by reason o-f his connection with public affairs, has had a mass of matter published about him in the public prints. He calls attention to numerous publications growing out of an investigation by a committee of the Legislature of charges of the raising of large sums of money to influence legislation respecting the race tracks, to the indictment and trial of a member of the Legislature who was acquitted upon such trial, and to the fact of defendant’s absence from the city during the latter part of the period during which said legislative committee sat.

Hone of those matters had anything to do with the alleged misconduct for which he has been indicted and said publications antedated the finding of said indictment, notwithstanding the articles, cartoons and poems, the insinuations, suggestions, and even abuse of which he complains, relating to those matters as aforesaid, antedating the finding of the indictment, he made three applications in the summer of 1911 for a speedy trial in the county of Hew York and succeeded in procuring a removal of the case to the -Court of General Sessions in July,, upon the ground that he was entitled to a speedy trial and that the Supreme Court, in which the indictment was pending, would adjourn for the summer months, and as late as the 27th of July, 1911, he was urging the vacating of the stay which had been granted in order to enable him to get a speedy trial in Hew York county.

So that this court may fairly look at the precedent publications, upon which he now relies to show a prejudiced public from which a fair jury could not be drawn, in the same light that he did when strenuously insisting upon a speedy trial. We may with propriety, I think, confine our examination to matters occurring thereafter.

He alludes to the trials growing out of the failure of the Carnegie Trust Company. At the time he made his application for the transfer of the indictment to the General Sessions Beickmann had been tried. Only 62 talesmen were examined and a jury was selected in less than one court day upon that trial. Upon the trial of Cummins only 165 talesmen were examined and a jury was secured- in less than three days. Defendant was not indicted for the crimes for which Reichmann and Cummins were indicted. He has been indicted for taking bribes or gratuities, as a public officer, to afíect his official conduct.

There is little or no evidence of a wide-spread public belief of his guilt or innocence of the charge brought against him. Section 376, subdivision 2, of the Code of Criminal Procedure provides: “But the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath that he believes that such opinion or impression will not influence his verdict and that he can render an impartial verdict according to the evidence and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict.”

Impressions made by reading the newspapers are ephemeral, and jurors in this country have, in a number of notable cases, although surrounded by evidence of great popular feeling, not been swayed thereby. Considering the population of ¡New York county, its large general jury list and its carefully selected special jury, we feel perfectly confident that it is not necessary to send this indictment for trial to any other county to enable the defendant to enjoy his undoubted right to a fair and impartial jury.

We have given the papers submitted careful and painstaking attention and are satisfied that the learned Special Term correctly disposed of this motion and that the order appealed from should be affirmed.

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

Order affirmed..

NOTE ON REMOVAL OF ACTION BEFORE TRIAL,

(See note, vol. 5, page 160.)

GENERALLY. ,

The affidavits must set forth the facts and circumstances so that the court may judge whether the application is well founded. People v. Bodine, 7 Hill, 147.

To entitle a defendant to a removal of a criminal action to another county, he must make out a clear and convincing case that by reason of popular passion or prejudice he cannot have a fair trial in the county where the venue is laid. People v. Sharp, 5 N. Y. Crim. 155.

In deciding an application for changing the place of trial the court should be governed by the facts shown, and not by the impressions and conclusions of witnesses and parties. People v. Railroad Co., 4 Park, 602, 16 How. Pr. 106.

JURISDICTION.

The Supreme Court has general jurisdiction to entertain a motion for the change of place of trial of a criminal action on the ground that a fair trial cannot be had in the county where the venue is laid. People v. Jackson, 114 App. Div. 697, 20 N. Y. Crim. 347.

The question should be determined, not upon the personal conviction of the court, but upon the evidence. State v. Mooney, 10 Iowa, 506.

The right of the defendant in a criminal action to apply to a Special Term of the Supreme Court for a removal of the action to another county, before trial, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending, is an absolute right, and if a stay of the trial of an indictment is granted by a judge of the Supreme Court, to enable the defendant to make the application, the intent of the statute is that, subject to the discretion of the judge granting it, the stay shall also be absolute, unless under very exceptional and extraordinary circumstances. People v. McLaughlin, 150 N. Y. 365.

A statute allowing a change of venue is not void as conflicting with the constitutional right to be tried in the county where the prisoner is indicted. 1 Bish. Crim. Proc. 90; Perteet v. People, 70 Ill. 171.

But the change can only be made with his consent. Wheeler v. State, 24 Wisc. 52.

The standard of fairness which the law contemplates, stated in People v. Diamond, 36 Misc. 75, and People v. Georger, 109 App. Div. 111.

AT COMMON LAW.

At common law the venue in a criminal case may be changed on application of the prisoner. State v. Albee, 61 N. H. 423.

IN WHAT CASES ALLOWED.

It is a sufficient reason for changing the place of trial that a fair and impartial trial cannot be had in the county where the venue is laid. People v. L. I. R. R. Co., 4 Park. 602, 16 How. Pr. 106.

Where several defendants, who were supervisors, are indicted individually for bribery and embezzlement of public moneys in connection with the building of an armory upon the site of an old cemetery, and great public feeling adverse to them has been aroused in the locality by newspapers and popular humor, a proper case is presented for change of place of trial on the ground that a fair trial cannot be had in the county where-the venue is laid. People v. Jackson, 20 N. Y. Crim. 347.

That the place of trial of one of the defendants accused of the same crime has been changed, is a good reason for changing it as to others. People v. Jackson, 20 N. Y. Crim. 347.

IN WHAT CASES DENIED. '[

Where the questions urged as a ground for removal have already been passed upon by the court having present jurisdiction, an order of removal will not be granted. People v. Rourke, 11 Abb. N. C. 89.

Above case distinguished, People v. Clark, 5 N. Y. L. J. 243, 15 N. Y. Supp. 79.

The venue will not be changed upon affidavits expressing mere belief that the prisoner cannot obtain' a fair and impartial trial in the county where the indictment is found. People v. Bodine, 7 Hill, 147; People v. Sammis, 3 Hun, 560.

The fact that the indictment found in the Court of Special Sessions raises a constitutional question which has been decided by that court upon a motion to quash; the further fact that the law does not prescribe a maximum punishment for the offense charged, and the fact that owing to local excitement there will be difficulty in procuring a fair trial, 'held not to present grounds which authorize the removal of the action to the Court of Oyer and Terminer. People v. Rourke, 11 Abb. N. C. 89.

Where it appears from the record upon an appeal from an order denying the motion of a defendant charged with a brutal and atrocious murder, for a change of venue, upon the ground that a- fair and impartial trial could not be had in the county where the indictment was found, that, only eighty-four talesmen were examined in obtaining a jury and that the defendant interposed only sixteen peremptory challenges, although under the statute he was entitled to thirty, it cannot be held that there was such a violent prejudice against the defendant, that the presumption of innocence to which he was entitled had been converted into a universal presumption of guilt whereby it was impossible to obtain a fair and impartial jury before whom the defendant could be tried. People v. Bonier, 21 N. Y. Crim. 263.

An order changing the place of trial in a criminal action on the ground of the disqualification of the judge, is without jurisdiction and void. People v. McGarvey, 56 Cal. 327.

RIGHT OF DEFENDANT TO MAKE APPLICATION.

At common law, where a fair and impartial trial could not be had in the county where the crime was committed, and the indictment had been removed into the court of King’s Bench by certiorari, such court could, upon proper application of the defendant, change the venue to another county. 3 Blackstone, 294, 350.

Power to change venue in criminal eases almost entirely a question of statutory enactment. People v. Harris, 4 Denio, 150.

It is reversible error to refuse to permit an application for change of venue to be filed when same is made within a reasonable time. Greer v. Commonwealth, 63 S. W. (Ky.) 443.

Convicts in the penitentiary who are civilly dead for the term of their sentence are not entitled to a change of venue in a prosecution during such term. Golden v. State, 30 Mo. 417.

RIGHT OF THE PEOPLE TO MAKE APPLICATION.

Where the constitution contains no express provision regarding the place of trial, the court has power to change the place of trial on the .application of the prosecution, whether it appears that a fair trial cannot be had in the county where the defendant is indicted. People v. Baker, 3 Abb. Pr. 42.

The venue in a criminal case may be changed on motion of the public prosecutor, if it appears that a fair and impartial trial cannot be had in the county where the indictment was found. There is no fixed rule •defining what shall or shall not be received as proof of the fact that such fair trial cannot be had, and the venue may be changed, though there has been no experiment made, by way of trying the cause, or even empanelling a jury, in the county where the venue is laid. People v. Webb, 1 Hill, 179. See also Scott v. Gibbs, 2 Johns. Cas. 116, note.

The district attorney may remove a case to the Supreme Court as a .matter of course and right. People v. Vermilyea, 7 Cow. 109.

The writ of certiorari is demandable of right by the crown. Rex v. Eaton, 2 T. R. 89.

The writ of certiorari issues as of course where the attorney-general or other officer of the crown applies for it, either as a prosecutor or as conducting the defense on behalf of the crown. Rex v. Lewis, 4 Burr. 2458.

This is so even though the certiorari bq .expressly taken away by statute, for unless named, the crown is not bound by statute. Commonwealth v. ——, 48 Pa. St. 53.

The writ of certiorari is demandable of absolute right only by the king himself, and to him the court is bound to grant it. Rex v. Lewis, 4 Burr, 2458.

SAME—REMOVAL OF ACTIONS AGAINST CO-DEFENDANTS.

Where several defendants are indicted by a common indictment, a change* of venue may be ordered as to one defendant upon his own motion, without of necessity removing the action as to any of the others. State v. Martin, 24 N. C. 101.

And under such circumstances the court may, in its discretion, upon an> application by one only, change the venue as to all the defendants. People v. Baker, 3 Park. Crim. 181.

REMOVAL BY CONSENT.

Change of venue by consent held proper, even where right depends oni statute. Oborn v. State, 126 N. W. (Wis.) 737.

NOTICE OF APPLICATION.

Notice of the application need not be given to defendant. People v. Carolin, 115 N. Y. 658, 7 N. Y. Crim. 152; Leighton v. People, 88 N. Y. 117.

Under the provisions of the revised statutes authorizing Courts of General Sessions to send indictments to the next Court of Oyer and Terminer, it was held to be unnecessary to give the accused notice of an application for an order of removal. Leighton v. People, 88 N. Y. 117.

GROUNDS OF APPLICATION—LOCAL PREJUDICE.

If a defendant desires a change of place of trial of a criminal action by reason solely of newspaper denunciation, he must, especially where the* place of publication of said newspapers is a large city, where the choice of jurors is great and varied, show that this denunciation has had some effect by way of popular expression prejudicial to his rights. People v. Sharpe, 5 N. Y. Crim. 155.

Change of venue allowed on account of race question and notoriety occasioned by frequent trials. Smith v. State, 45 Tex. Crim. 405.

Newspaper discussions prejudicial to the accused and one-sided accounts of the commission of the crime. People v. Squire, 1 N. Y. State Rep. 534. .

Actual attempts of a mob to hang the accused. State v. Horne, 9 Kan. 119.

But contra. State v. Greer, 22 W. Va. 800.

Prejudice in the county against the particular crime which the defendant is alleged to have committed, held not sufficient. Shepard v. State, 36 Fla. 374.

Prejudice against particular crime, held material, but not in itself sufficient. McNealy v. State, 17 Fla. 198.

Difficulty in obtaining a jury, although material as showing prejudice,, does not justify a change of venue. People v. Swartz, 119 Mich. 292.

Where defendant is under nine indictments charging him with grand larceny, perjury and wrecking a bank, and the public-press of the vicinity has, almost without exception, proclaimed him guilty, and it appears that, he is so considered by the community as a whole, th"e place of trial should be changed on the ground that a fair and impartial trial cannot be had in the county or city where the indictments are pending. People v. Georger, 109 App. Div. 111.

Change cannot be had where the prejudice is confined to a limited section of the county so that an impartial jury can be obtained from another section. People v. Baker, 1 Cal. 403.

Cannot be had where prejudice, which has once existed, had subsided at the time of the trial. Daughdrill v. State, 113 Ala. 7.

The statement of the accused that he does not believe that he will: receive a fair and impartial trial without any facts to substantiate it, held not sufficient. People v. Shuler, 28 Cal. 490.

In order that a change of venue may be had, facts and circumstances, must be shown from which the conclusion is fairly deducible that a fair and impartial trial cannot be had, and the court must be satisfied from, those facts and circumstances and not from the conclusions or opinions of the defendant or his witnesses, that such trial cannot be had. State v. Sheppard, 49 W. Va. 582.

The fact that a fair and impartial jury has been obtained pending the-application for a change of venue, may justfy the court in denying such application. Brinkley v. State, 54 Ga. 371.

■SAME—CONVENIENCE OP WITNESSES.

A change of venue cannot be had merely to suit the convenience of witnesses, or where they reside without the county where the indictment is found. People v. Harris, 4 Denio, 150, 168 N. Y. 604.

The power to change the place of trial for convenience of witnesses, upon the application of the defendant, should be conferred upon the proper court in all criminal actions, where the indictment alleges that the crime was committed partly in one county and partly in another, or in any case arising under section 134, Code of Criminal Procedure. People v. Mitchell, 168 N. Y. 604.

BURDEN OP PROOF.

The burden of proof is on the defendant to show good grounds for a -change of venue, in case he is the applicant therefor. Emporia v. Vollmer, 12 Kan. 662.

TO WHAT COUNTY.

Ordinarily, where the place of trial is changed m a criminal case, an .adjoining county should be designated. People v. Baker, 3 Park. 181, 3 Abb. Pr. 42.

But if the necessity which requires the change calls for it, a more remote county may be designated. People v. Baker, 3 Park. 181, 3 Abb. Pr. 42.

DISCRETION OF COURT UPON APPLICATION.

People v. McLaughlin, 150 N. Y. 371.

The granting of an order of removal rests in the sound discretion of -the court. People v. Sessions, 10 Abb. N. C. 192.

The court has in all cases discretion in the matter, and there is in no •case an absolute right to such change on the application of either the People or the defendant. Barnes v. State, 36 Tex. 379.

Held to be addressed to the sound discretion of the court, and therefore -the refusal of the court to grant an appliction is held to be no reversible error, unless it affrmatively appears from the facts presented that there was a palpable abuse of judicial discretion. Commonwealth v. Cleary, 148 Pa. St. 26.

A statute empowering the court to hear evidence and from it to determine whether the accused is entitled to a change of venue held not to deprive the defendant of his right to such cha'nge, where he makes out a case in conformance to the statute or shows reasonable ground for a belief that he cannot have an impartial trial, and it is the duty of the court to grant the application. Edwards v. State, 25 Ark. 444.

Held that the court has no discretion to refuse a change of venue in a capital case where the defendant complies with the statute. Rafferty v. People, 72 Ill. 37.

APPEALS.

An ordos denying a motion to change the-place of trial is not an intermediate order in the action from which an appeal can only be taken after trial and judgment, but is of the nature of an order in an independent special proceeding from which a direct appeal may be taken to the Appelate Division. People v. Jackson, 20 N. Y. 347.

The discretion of the special term, in refusing to change the place of trial of an indictment which is sought to be changed on the ground that a fair and impartial trial cannot be had, though entitled to great weight, .is reviewable by the appellate division. People v. Georger, 109 App. Div. 111.

Unless it be shown that there was abused discretion by the trial court in refusing change of venue, its decision will not be interfered with. State v. Perigo, 8 Crim. Law Mag. (Iowa) 156.  