
    (37 South. 597.)
    No. 15,437.
    STATE ex rel. ROGERS v. GRAY, Judge.
    (Dec. 5, 1904.)
    CRIMINAL LAW — CHANGE OF VENUE — RESCISSION OF ORDER.
    1. In matter of a change of venue applied for by defendant there may cause arise which will be sufficient- to enable the trial judge to rescind the order transferring the case to another parish, if the transfer which he has ordered is still incomplete, the clerk not having prepared required papers.
    2. In case of doubt in matter of the change of venue, the court holds that it is best to resolve it in favor of the application of the accused, who will have to appear before a jury of the vicinage.
    (Syllabus by the Court.)
    Application by .the state, on the relation of R. T. Rogers, for writs of mandamus, prohibition, and certiorari to.W. J. Gray, Judge of the Seventh Judicial District Court.
    Writs granted.
    T. S. Ward, H. Flood Madison, and Carey J. Ellis, for relator. Respondent Judge, pro se.
   BREAUX, C. J.

Gn application to rescind judgment changing the venue.

The defendant, Robert F. Rogers, relator here, with four others, was indicted by the grand jury of Richland, on the 18th day of October, 1904, for the alleged murder, on the 19th day of February, 1904, of Jesse Brown, in that parish.

He was arraigned, pleaded not guilty, and his case fixed for trial for the 28th of October, 1904.

On the day set for his trial a motion for change of venue was filed on his behalf. In his petition for a change of venue relator said, in substance, that in consequence of the excited condition of the public mind, and the prejudice against him in the parish of Richland, he would be unable to obtain a fair and impartial trial in that parish.

The district attorney urged no objection to the motion. The court ordered a change of venue. The judgment ordering the change-was signed on the 29th day of October, 1904.

The district judge, made respondent, in his: answer to the rule nisi states, in substance,, •that after the signing of the order of the court to transfer the case as just stated-, and after the jury for the term had been discharged, one of defendant’s attorneys asked, him not to transfer the case to the Sixth Judicial District and parish of Ouachita.

Respondent further states that he was not impressed by the reasons brought to bear against changing the venue to the parish of Ouachita.

That he selected that parish because it was more convenient for the witnesses, most of whom resided in the parishes of Caldwell and Richland, and because of its being accessible to the other parishes; that he felt satisfied- that little or no prejudice or excitement existed in the parish of Ouachita against defendant, and he was convinced! that he could obtain a fair and impartial trial in that parish, and that the fears of relator and his counsel in that respect were imaginary.

Respondent, at some length, sets forth the reason he had for thinking that the case could fairly be transferred to Ouachita parish. Respondent avers that he denied to relator the right to file the motion for a rehearing on the application for a change of venue, and denied also the motion for a rehearing on the order changing the venue, because it was apparent to him that delay was the purpose of the defense; that they presented their application for a rehearing on the chapge of venue in order to accomplish indirectly that which they had failed to obtain directly on their motion for a continuance, which had been overruled.

That relator had first alleged under oath that the state of the public mind in the parish of Richland was so excited and so violently prejudiced against him (defendant) that he could not obtain a fair, impartial trial in that parish; that as soon as the jury was discharged, and when tnere could not possibly be an opportunity to try the case at that term of the court, they immediately asked to withdraw it, which was refused.

There are other averments made to about the same effect, which it is not necessary to mention here. They have been carefully considered by us. We will add, however, that we are officially informed by respondent that the sheriff of Richland parish,, the same day that the order transferring the case to the parish of Ouachita was signed, executed it to some extent by transferring the accused to the parish of Ouachita, and delivering him to the sheriff of that parish, together with a copy of the order of removal of the person of defendant; that the clerk of the court was instructed to immediately forward-the papers in the case to the clerk of court to which the case had been transferred, and was preparing to do so, but at the instance of the attorneys for defendant he, the judge of the court in and for Richland parish, signed an order directing the clerk to delay forwarding the papers in order to give counsel time to prepare his application to the appellate court.

These are about all the facts needful in preparing our opinion. After having considered all the issues, we confine our review to the question involved strictly on the change of venue.

.There are questions presented that may come up on appeal. They cannot be considered on this application without setting aside rulings that have received repeated approval. The issue inviting our careful attention is, first, whether the transfer of the case had been made at the time that defendant applied to set aside the change of venue which had been ordered by the trial judge.

We have seen that the order of transfer which the clerk of court was preparing had not been signed by the judge. ' True, the defendant had been taken to the parish jail of Ouachita on the day that the order transferring the case to that parish was issued, but it is also true that recently this court held that this alone did not have the effect of transferring the case, and, though an order similar to the one now before us had been issued, the decision was that no transfer had been made, as it had not been signed, and the defendant and the papers of the case had not been sent to the parish to which the judge ordered the change of venue.

To complete the transfer it requires the transfer of the prisoner and the papers. Here not only the papers had not been transferred, but the order of transfer had not been signed.

The decision to which we refer was pronounced in State ex rel. Williams v. The Judge, 109 La. 127, 33 South. 108, in which this court held that the trial judge had the authority to reopen the change of venue proceedings. Having such authority, he also has in the case here the authority to consider the waiver the defendant tendered to he filed after the order of transfer had been issued, and before the change was completed by delivering the prisoner and papers of the case to the authorities to which it is transferred. Of course, such a waiver must be timely filed. There must be no attempt made to trifle with the court.

As the application to waive was in time in this case, we are to consider whether the defendant should be permitted to waive the order issued on his motion. We think he should be allowed to enter a waiver, and that it should be sustained.

Our learned Brother in his answer says that he “felt satisfied that little or no prejudice or excitement exists in the parish of Ouachita,” to which the case was transferred, against relator.

While it may well be that the feeling, if any exist, would not have the least influence, yet in this case of vital importance to the defendant it is advisable to let him have the benefit of his waiver.

We infer that the killing which gave cause for investigation and which resulted in the jury finding a true bill created some attention. There may have been pronounced prejudice. . The record, discloses that the killing gave rise to some comment by newspapers at and near the locality of the alleged crime. Too great importance, it is true, should not be attached to comments of this kind.

The juries and judges of either parish would doubtless sufficiently guard against such influences, if they exist.

An impartial trial, we think, may be obtained in either parish, but since the defendant has elected to be tried by a jury of the vicinage, he may be allowed, without affecting the regular course in the administration of justice, the benefit of his waiver, which is a final disposition of the matter, for no accused is entitled to more than one application to change the venue in one case.

The questions are purely of law. The learned judge, seeking to conserve law and nrder, granted the change of venue for which the defendant applied. He, we have reason to believe, acted conscientiously.

None the less we do not find it possible to agree with the refusal to permit the waiver under the facts and circumstances.

It should he borne in mind that there was mo trial of the application for a change of venue. The transfer was made properly with the consent of the district attorney, without hearing evidence. It was still time, under the circumstances, to waive the motion. It should, perhaps, be different if there had been a regular hearing — testimony heard, and after some delay — but here there was nothing of the sort.

Our opinion finds support in Bishop’s New 'Criminal Procedure, vol. 1, p. 74, § 73, par. 6.

We are of the opinion that the rule nisi in this case should be made absolute.

It is ordered, adjudged, and decreed that the writs applied for be allowed, and that mandamus issue as applied for, and the judge of the district court is ordered to set aside his order granting a change of venue to defendant; that he accept defendant’s waiver, place it of record, and reinstate the case of the State of Louisiana v. R. T. Rogers, and proceed with the trial thereof as if no order changing the venue had ever been granted.  