
    THE PEOPLE OF THE STATE OF NEW YORK v. ROYAL SAMMIS and RUDOLPH SAMMIS. THE SAME v. ROYAL SAMMIS and GEORGE B. BANKS.
    
      Venue — change of — affidavits for—what must state.
    
    When an accused person applies to change the place of trial, he must make a clear case, that, hy reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid.
    Affidavits stating the belief of persons that a fair trial cannot he obtained, are not sufficient. Facts and circumstances must be stated.
    Appeal from an order at Special Term, denying the defendants’ motion for a change of the place of trial.
    
      John R. Fellows and Charles W. Brooke, for the defendants.
    That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county in which "the venue was laid, is a sufficient reason for changing the place of trial in a criminal case. (The People v. Long Island Railroad Co., 4 Parker, 604; The People v. Webb, 1 Hill, 179; The People v. Mary Bodine, 7 Hill, 147; The People v. Rulloff, 3 Park. Cr. 401.) The venue should be changed in a criminal case where the evidence of public excitement against the applicant is strong, although no actual experiment has been made by way of trying the cause, or even impanneling a jury, where such venue had been originally laid.
    
      Fra/ncis G. Barlow, for the people.
    It is a fundamental principle of the common law, that all persons accused of crime shall be tried by “a jury of the vicinage.” The motion should be granted only “on dear proof that the cause cannot be tried with safety to the defendants.” (People v. Vermilyea, 7 Cow., 139.) The grounds for removal must be “ clearly established.” (People v. Bodine, 7 Hill, 148.) It is the capacity of the people to judge fairly, that is to be inquired into, not their actual beliefs. Facts only can be considered. (People v. Bodine, 7 Hill, 148; Rex v. Harris et al., 3 Burr., 1330; S. C., 1 Bl. Rep., 378; Chitty’s Cr. Law, 200; Roscoe’s Cr. Ev., 236; The People v. Vermilyea, 7 Cow., 137,138,139; The People v. Webb, 1 Hill, 179; People v. Wright, 5 How., 28; 2 Wend., 251.) The belief must be as to the whole case, and not as to an isolated fact. (See 3 Wharton Crim. Law, § 3100; 27 N. Y., 336; 9 Iowa, 188.) In People v. Wright (5 How., 25) the motion was denied, on facts very similar to those of the case at bar. (State v. Burris, 4 Har., 584.) “ Great indignation and excitement relating to the crime is not enough.”
   Barnard, P. J.:

Ho sufficient case is made to change the place of trial upon these indictments. It is the right, both of the people and of the person accused of crime, to have the trial take place in the county where the crime is alleged to have been committed.

When an accused person applies to change the place of trial, he must, under all the cases, make a clear case, that, by reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid.

Affidavits stating belief of persons that a fair trial cannot be obtained, are not sufficient; facts and circumstances must be established by the moving papers. The only facts established by the defendants in this application, are, that great excitement exists in Suffolk county, in reference to an inhuman and nameless outrage on Charles Gr. Kelsey; that the public newspapers in the town of Huntington, where the crime was committed, have had articles, more or less expressing the popular passion.

I fail to discover that any passion or prejudice exists as to the guilt of any particular person. If the fact be, that a proposed juror has made up his mind as to the portion of the body found in Huntington bay being the remains of Charles Gr. Kelsey, such juror can be set aside, as having made up an opinion upon a disputed fact essential to the guilt of the accused. There is no such a state of feeling shown by the papers, as to authorize us to say, that a jury of Suffolk county cannot patiently hear and justly consider and decide upon the evidence which may be adduced before them on the trial of these defendants. The order should be affirmed.

Present — Barnard, P. J., Tafpen and Donohue, JJ.

Donohue, J., dissented.

Order affirmed, without costs. 
      
       People v. Vermilyea, 7 Cow., 139; People v. Bodine, 7 Hill, 147.
     