
    The People vs. Webb. The same vs. The same.
    The venue in a criminal cause may be changed on motion of the public prosecutor, if it appear 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 trial cannot be had.
    The venue may be changed, though there has been no actual experiment made, by way of trying the cause, or even empannelling a jury, in the county where the venue is laid.
    The cases of Bowman v. Ely, (2 Wend. 250,) and Messenger v. Holmes, (12 id. ' 203,) reviewed and explained.
    E. Cooper, for the people, moved to change the venue from Otsego county to some county adjoining, on the ground that, previous to and about the time of the session of the oyer and terminer at which the indictments in these causes were expected to be tried, various publications had been issued and distributed among the inhabitants of .the county of Otsego and the jurors summoned for the court, tending to prejudice their minds against the prosecutor in respect to the trials. It appeared by affidavits, that the indictments were for libels upon J. F. Cooper printed in the defendant’s paper, (The Courier and Enquirer,) in the city of New-York, which the district attorney might have tried at the September oyer and terminer in 1840; about which time two of the articles, now made the main ground of the motion, were printed in another paper, called the New World, aiid transmitted through the post office to a number of the jurors summoned for the court. The defendant had been arraigned on both indictments at the September oyer and terminer, 1839,; shortly after which, a letter appeared in his own paper, which had a partial circulation in Otsego, giving an account pf the proceedings, calculated to prejudice the public mind against the prosecutor in respect to the trials. This, as Mr. Cooper now in his affidavit stated, from information and belief, had been sent, not only to regular subscribers in Otsego, but to others. And “ from the resemblance in matter and substance between a good deal of that portion of the publications in the New World appearing to be editorial, and the letter in the defendant’s paper, from other internal evidence, from general probabilities and from information,” Mr. Cooper said, in his affidavit, “he entertained no doubt, that the defendant wrote and composed, or was privy to the writing and composing the publications in the New World, and in circulating the same in the county of Otsego;” adding—“ This deponent avers that, confidently entertaining this opinion, he has avowed it in this affidavit, that the said defendant may purge himself by his own oath Of all agency in the publication and circulation, in the comity of Otsego, of said articles in the New World.” The affidavit also stated, that the general course pf a newspaper in Cooperstown, Otsego county, having a list of about .1200 subscribers, as deponent believed, had been marked by acrimony and hostility towards the complainant; and since the pendency of the indictments, had contained articles calculated to prejudice the people of the county against .the prosecutions in question.
    A motion was made by the district attorney to put off one of the trials at the September oyer and terminer, 1840, in consequence of the appearance of the publications. The motion was denied, and the district attorney ordered to proceed to trial, or enter a nolli prosequi. This, however, was not ordered until after inquiry among the jurors as to how many had .received the publications in the New World. There were about forty jurors remaining after the allowance of excuses; and of these, about thirty, on inquiry by the presiding judge, admitted they had received the articles in the New World. Several of the publications were traced through the post office j to the hands of jurors who, it was admitted, were not regular subscribers for the paper.
    .Affidavits were read tending to show, from observation and general opinions, the degree of excitement occasioned by the publications, and by other causes, on the subject of the prosecutions.
    The notice of the -motion for October term, 1840, with copies of Mr. Cooper’s affidavit, &c. and the New World containing the publications in that paper, were served on the defendant’s attorney, October 10th, 1840; but no affidavit of the defendant ■was now produced.
    Both indictments were removed into this court by certiorari ; and one of them, by the district attorney, after the oyer and terminer (the circuit judge dissenting) had ordered that the ■trial should proceed or a. nolle prosequi be entered, as above mentioned.
    
      L. J. Walworth,
    contra, read a number of affidavits tending to show, from observation and opinion, that so far from there existing any excitement in Otsego dangerous to the complainant, the balance of the excitement was against the defendant; and opposed the motion, mainly on the ground that, before 'the court would take so strong a measure as to change the venue, it should appear, that the district attorney had called on the cause, and endeavored to obtain an impartial jury. That it was only after such endeavor and failure, that this court would change the venue. He cited Bowman v. Ely, (2 Wend. 250,) and Messenger v. Holmes, (12 id. 203,) also 2 R. S. 613, 2d ed. § 85.
    
      S. S. Bowne, in reply.
   Curia, per Cowen, J.

This is a motion to change the venue in two indictments for libels -upon Mr. -Cooper, from the county of Otsego to some adjoining county. The motion is made on the part of the people; -and is founded on the alleged fact, that in consequence of a series of publications against the complainant, the public mind has become so much prejudiced against him in respect to the prosecutions, that a fair and impartial trial cannot be had in Otsego. The revised statutes, (2 R. S. 614, 2d ed. § 1,) impliedly authorize us to make such a change for special cause, on an indictment coming into this court by certiorari. This is also an authority which we have at the common law. (1 Chit. Cr. Law, 201, Am. ed. of 1836. The King v. Nottingham, 4 East, 208. The People v. Vermileya, 7 Cowen, 139.)

The principle of the application is, therefore, correct; and the only question is, whether the affidavits for the motion are sufficient to raise a serious doubt that a fair and impartial trial can be had in Otsego.

It' is shown, on the part of the prosecution, that the course of a newspaper in that county has been acrimonious . against, and hostile to the prosecutor, in respect to these in- . dictments. That this paper is published in the county town, and has a considerable subscription; that in the defendant’s own paper, which has some circulation in that county, an article appeared with strictures adverse to the prosecutions. But especially, it is complained, that two successive copies of the New YYorld were sent from the city of New-York, they containing two successive articles of a similar tendency. Copies of these articles were addressed, not only to residents of the county indiscriminately, but were directed to and received by many of the jurors who were summoned to attend the court, and who were, some of them at least, expected to participate in the trials. The New World was published by a neighbor of the defendant. The latter has not, however, any interest in that paper. But it is averred by the complainant in his affidavit, that from the resemblance of the articles in the New World, to the previous article in the defendant’s paper, and other circumstances, he believes the defendant was personally concerned in the printing and circulation of the articles in the New World. This, the defendant has not denied. Indeed, he has made no affidavit in the matter, though a copy of the charge was served upon him several months ago. As to the weight of evidence, therefore, on which the motion rests, very little comment would seem to be necessary. The power of the three presses has been accidentally or purposely combined to work a prejudice in the public mind against the complainant, on the very questions involved in the prosecutions, and in a manner entirely adequate to the proposed effect. It must also be taken, I think, upon the defendant’s silence under the charge, that he has aided in managing the most pernicious department of the machinery. It is extravagant to suppose, in the absence of proof, that any mere stranger to the prosecutions, however hostile to the complainant, would volunteer to practice upon the jurors who were summoned to attend court; that he would gratuitously commit an offence both morally and legally criminal,” by tampering with the administration of justice.

The effort has been local, and it becomes our duty to obviate its influence, as far as may be in our power.

The cases cited, (2 Wend. 250, and 12 id. 203,) for the defendant, do not, as is supposed, fix on a definite species of evidence to sustain this sort of motion, and forbid a resort to other proof tending in its own nature to show that a fair and impartial trial cannot be had in the county where the indictments were found. The first case, indeed, ordered a change of venue to a county where it was thought, by several individuals, so much excitement prevailed against the plaintiff, that he could not have a fair and impartial trial. The decision, however, proceeded on the ground that the proof rested in speculative opinion. In the case last cited, the venue was changed, on the ground of excitement. In both cases, the learned judges speak of the attempt and .failure to obtain an indifferent jury, as indicating the propriety of a change. The intimation in the last, that, without such an experiment, a change would be inadmissible, was entirely obiter. The only points established by these cases were, that mere speculative opinion is not sufficient evidence; but that a failure of two successive juries in the same cause, to agree on a verdict, is. To make such an experiment essential, would seem to be quite dangerous. It is the very thing which the law seeks to avoid, when it is seen that the party may, and probably will be drawn into a trial by a jury, who, under an influence of which they may themselves be hardly conscious—an influence which perhaps no human sagacity can detect—may pronounce a verdict against him, and conclude his rights forever. Above all, would it be dangerous to require that he should risk his trial by a panel selected from a community already sought to be influenced by the course of the press; that very panel being personally appealed to by the opposite party’s own press, or one put in motion by him, or by some other person. It is impossible, until, men shall have done with devices for getting up public excitement and turning it to their own account, to lay down, as in a category, precisely what shall and shall-not be received for satisfactory proof of such excitement to a degree which may endanger the impartial administration of justice. All will agree, that when it is shown to exist, by whatever circumstances, the trial should be removed from the sphere of its probable influence by some means. Putting off the trial may be sufficient; and the remedy must be confined to that when there is no power in the court to change the venue. If there be such a power, and the excitement appear'to be extensive in the county where the venue is laid, it should be' changed to another.

In these causes, we direct a rule that they be tried in the county of Montgomery.

NeIson,- C. J. gave no opinion.

Motion granted.  