§ 1033. When action may be removed.

§ 1034. Application for removal, how made. § 1035. Duties of court. § 1036. Order of removal.

§ 1037. Proceedings on removal, if defendant is in custody.

§ 1038. Authority of court to which action is removed. When original papers must be transmitted.

held unconstitutional.

2. Jurisdiction exclusive.

3. Libel-The words "have good cause." 4, 5. Rule trial must be in county. II. GROUNDS FOR CHANGE OF VENUE. 6, 7. Bias or prejudice of presiding judge. 8. Same-Jurisdiction of superior court with respect to removal.

9. Same-Making erroneous ruling. 10. Bias and prejudice of sheriff.

11. Denunciation in press and pulpits.

12. Difficulty in securing jury.

13. Disqualification of people to act as jurors.

14. Employing counsel to prosecute.

15. Same-Rule questioned.

16. Failure to get a jury.

17. Fair and impartial trial.

18. Forestalling judicial inquiry.

19. Information and belief.

20. Selecting jury from portion of county. 21. Violence by mob-Threats of lynching.

As to change of place of trial of civil actions, see Kerr's Cyc. Code Civ. Proc. (2d ed.), § 397 and note.

As to change of venue from justices' and police courts, see, post, § 1432 and note.

I. IN GENERAL.

1. Editorial note-Former subdivision 2 unconstitutional.-By amendment approved March 9, 1887 (Stats. 1887, p. 61), it was provided that criminal action may be removed from court in which it is pending, on application of district attorney, "on the ground that, from any cause, no jury can be obtained for trial of defendant in county is pending." where action In People v. Powell, 87 Cal. 348, 361, 25 Pac. 481, 11 L. R. A. 75, it was held that this amend

ment was in conflict with section 7 of Bill of Rights, contained in state constitution of 1879, which provides that "the right of trial by jury shall be secured to all, and remain inviolate," and refers to right as it existed at common law; that is, trial of all crimes is required to be in county where they were committed, and that jury itself should come from vicinage of place where crime was alleged to have been committed. This section, as amended by act approved March 21, 1905 (Stats. 1905, p. 695), is substantially in language of original section prior to amendment above referred to.

2. Jurisdiction is exclusive. - Power of superior courts to transfer indictments or informations for trial to another county is derived solely from this section, and section 397, Code of Civil Procedure, has no application to criminal cases. People v. McGarvey, 56 Cal. 327, 329.

3. Libel-The words "have good cause" in section 9 of article I of the constitution regulating criminal prosecutions for libels for the press should not be construed as an operative law or conferring an enlarged discretion upon the court and the one good venue for changing the where the prosecution is brought at the place of residence of the person libeled is that set forth in this section.-Older v. Superior Court, 157 Cal. 770, 780, 109 Pac. 478.

cause

4. Rule trial must be in the county where the offense was committed has no application in this state, where, under the constitution, the place of trial is subject to legislative determination.-Matter of MacDonald, 20 Cal. App. 641, 129 Pac. 957.

5. If a statute guarantees to the accused, 1 the right to trial by jury in the place by law designated as the place for trial, it confers upon him the right contemplated by the constitution.-Matter of MacDonald, 20 Cal. App. 641, 129 Pac. 957.

trial of criminal action.-People v. Shuler, 28 Cal. 490, 495.

7. Bias, prejudice, or partiality on part of judge is not ground for change of venue. -In re Jones, 103 Cal. 397, 398, 37 Pac. 385. 8. Same-Jurisdiction of superior court with respect to removal of criminal actions to another county for trial is special, and can be applied only in case mentioned in this section. An order of removal is authorized only when fair and impartial jury is not to be obtained in county where prosecution is pending and not because of disqualification of trial judge. People

McGarvey, 56 Cal. 327, 329.

V.

9. Same- Making erroneous ruling.Bias or prejudice of judge in making an erroneous ruling in former trial of case is not ground for change of venue.-People v. Williams, 24 Cal. 31, 36.

As to disqualification of judge, see Kerr's Cyc. Code Civ. Proc. (2d ed.), § 170 and note.

10. Bias and prejudice of the sheriff and his deputies, notwithstanding impropriety of those officers indulging in expression of opinions which might contribute to defeat due administration of justice, are not sufficient ground to authorize court to change place of trial.-People v. Shuler, 28 Cal. 490, 495.

11. Denunciation in press and pulpits.Where it appears that defendant, person of no consideration in community, shot and killed sheriff of county, who was in discharge of his duty; that upon arrest of defendant a large mob of people threatened to lynch him, so that it became necessary to clandestinely remove him from county temporarily; that defendant had been denounced in church pulpits and public press, and that it was opinion, almost unanimous throughout county, that no punishment but death was deserved by defendant, and only counter-showing made by prosecution was that excitement had abated somewhat, and that there was no real intent to lynch defendant, but it was admitted that there was but one opinion in regard to guilt of defendant existing in county,-change venue should be granted.-People v. Suesser, 132 Cal. 631, 635, 64 Pac. 1095.

of

12. Difficulty in securing jury.—Affidavits made by old residents of county, intimately acquainted with its inhabitants, and having opportunities to be informed of state of public mind throughout county, showing that threats to tear down jail and hang defendant were made by persons assembled from various parts of county, who only desisted because they were persuaded that jail was too strongly guarded; that there existed throughout county general feeling of extreme hostility against prisoner and general belief that he was guilty; and truth of these statements is not denied by prosecution; and it appears that great difficulty was had in securing jury; that upon challenge of panel while an elisor was under

14. Employing counsel to prosecute.Where it is shown that over one hundred citizens united in employing counsel to prosecute defendant, and there are no opposing affidavits tending to show that fair trial could be had, defendant is entitled to change of venue.-People v. Lee, 5 Cal. 353, 354.

15. Same-Rule questioned in People v. Graham, 21 Cal. 261, 265, holding that fact that thirty or forty persons, upon being solicited, contributed small sums to defray cost of employing lawyer to assist district attorney, does not show existence of such excitement or prejudice in whole county as will preclude possibility or probability of procuring impartial jury without difficulty. 16.

Failure to get jury on particular day does not afford such confirmation to statements of affidavits as to make it error in court to refuse change of venue on renewal of application.-People v. Mahoney, 18 Cal. 180, 181, 187.

17. Fair and impartial trial.-Removal is only authorized under this section upon application in writing asking for removal on ground that defendant can not have fair and impartial trial in county where indictment or information is pending, and, where judge is disqualified, attendance of another judge must be secured in mode provided by section 71, Code Civil Procedure. People v. McGarvey, 56 Cal. 327, 329.

18. Forestalling judicial inquiry.-Conviction is much more satisfactory if defendant is tried in some county far beyond reach of threatening atmosphere surrounding him at place of trial, and where active and long-continued attempt to forestall judicial inquiry and compel hostile decision can not possibly have much force.-People v. Durrant, 116 Cal. 179, 225, 10 Am. Cr. Rep. 499, 48 Pac. 75 (McFarland, J., concurring).

19. Information and belief.-Where affidavits merely state that in belief or opinion of affiants prisoner could not have fair trial, owing to public prejudice against him, and no difficulty was found in obtaining jury wholly free from bias or prejudice, application is properly denied.-People v. Congleton, 44 Cal. 92, 95.

had been attacked on ground that action of legislature was an improper interference with prerogative of the judiciary, it would, in all probability, have been declared to be unconstitutional.-See Kerr's Cyc. Civ. Code (2d ed.), § 453m and note.

6. Counter-affidavits — Purpose of.-Provision of this section allowing district attorney to file counter-affidavits is for purpose of satisfying court that affidavits of defendant are true, in accordance with provisions of section 1035, post. People v. Majors, 65 Cal. 138, 147, 52 Am. Rep. 295, 5 Am. Cr. Rep. 486, 3 Pac. 597.

7. Hearing of application-Issuing subpœnas. Subpoenas need not be issued upon order of court, unless it appears that clerk has refused to issue them upon application, or that attendance of witnesses could not be procured.-People v. Elliott, 80 Cal. 296, 298, 22 Pac. 207.

is

8. Postponement of application.—It not error to postpone of consideration application for change of venue until attempt is made to impanel jury.-People v. Plummer, 9 Cal. 298, 299, 310.

9. Same-Declining to renew application. -Where consideration of motion is postponed until attempt is made to impanel jury, and counsel declines, on intimation of court, to renew motion, he can not take advantage of failure to order change of venue. People v. Plummer, 9 Cal. 298, 299, 310.

10. Where motion is denied temporarily only, with permission given to renew application, and no effort was afterwards made to procure change of venue, no error was committed in denying motion. - People v.

of

12. Statement of grounds-Absence affidavit.-Application to court for issuance of subpoenas for witnesses to prove grounds of application for change of venue must be supported by legal showing. Mere statement of one of witnesses for defendant, that everywhere in county there was widespread conviction that defendant had in cold blood, and without justification or provocation, killed and murdered deceased, who was universally acquainted, and an esteemed citizen of county, and that great excitement and bitterness existed against defendant, and that disposition to execute him by lynch law prevailed, and that impartial trial could not be reasonably anticipated, unsupported by affidavit of defendant or any one else, is not sufficient showing. -People v. Elliott, 80 Cal. 296, 298, 22 Pac. 207.

13. Time for making application.-After twelve competent trial jurors have been obtained, application for time to prepare affidavits as basis of motion for change of venue on ground that fair and impartial trial can not be obtained before jurors impaneled comes too late.-People v. Cotta, 49 Cal. 166, 169.

APPLICATION FOR REMOVAL-DUTY

OF COURT.

1, 2. Discretion of trial court.

3. Same-Final action on motion.

4. Same-Not arbitrary.

5. Same-Not implicitly trusted.

6. Same-Not reversed unless abused.

7. Same-Right to unprejudiced jury.

8. Duty not imperative.

9. Remedy by appeal-Not habeas corpus. 10. Satisfaction of court-Consideration of counter-affidavits.

11. Same-Conclusion drawn by court. 12. Same-Strong prima facie case. 13. Unsupported statement of defendant.

1. Discretion of trial court.-Exercise of power to change venue on application of

defendant is discretionary in trial court, and subject to review in case of gross abuse of discretion.-People v. Fisher, 6 Cal. 154, 155; Watson v. Whitney, 23 Cal. 375, 376, 378; People v. Congleton, 44 Cal. 92, 95; People v. Goldenson, 76 Cal. 328, 338, 19 Pac. 161.

2. The trial court must necessarily exercise some discretion in the matter. It is not, however, an arbitrary discretion, but one the exercise of which must be reasonable. The conclusion reached must find warrant in the facts disclosed by the affidavits filed, and in the circumstances made appear in the record. People v. Kromphold, 172 Cal. 512, 157 Pac. 599.

to

3. Same-Final action on moton may be deferred by the trial court pending efforts to obtain a fair and impartial jury, and the proceedings in the impanelment of the jury

5. Same Not implicitly trusted. — Although power to grant change of venue is discretionary in trial court, supreme court will not trust implicitly in discretion of inferior courts.-People v. Lee, 5 Cal. 353, 354.

6. Same-Not reversed unless abused.— Application for change of venue is addressed to discretion of trial court, and denial of judge will not be reversed unless it clearly appears to appellate court that such discretion has been abused.-People v. Elliott, 80 Cal. 296, 298, 22 Pac. 207.

7. Same-Right to unprejudiced jury.Although change of venue is now left to discretion of trial court, it is not intended by this to deprive any one of right to be tried by jury which is in fact unprejudiced. -People v. Suesser, 132 Cal. 631, 632, 64 Pac. 1095.

8. Duty not imperative.—It is not imperative duty of court to transfer case, but it must determine from facts stated in affidavits whether reasons given show that defendant can not have fair and impartial

trial.-Lowrey v. Hogue, 85 Cal. 600, 602, 24 Pac. 995.

9. Remedy by appeal-Not habeas corpus. -Refusal to change place of trial, if erroneous, may be remedied by appeal; writ of habeas corpus is not proper remedy.-Ex parte Wright, 119 Cal. 401, 402, 51 Pac. 639.

10. Satisfaction of court — Consideration of counter-affidavits.—Court is not obliged to accept as true facts sworn to by defendant's affidavit. Court must be satisfied that defendant's affidavit speaks truth, after considering counter-affidavits of prose

cution as well.-People v. Majors, 65 Cal. 138, 147, 52 Am. Rep. 295, 5 Am. Cr. Rep. 486, 3 Pac. 597. See People v. Yoakum, 53 Cal. 570.

11. Same-Conclusion drawn by court.— Conclusion that defendant can not have fair and impartial trial in county is to be drawn by court, and not by defendant and his witnesses. Count must be satisfied that representation of defendant is true.-People v. McCauley, 1 Cal. 379, 383.

12. Same - Strong prima facie case. Where motion for change of venue is made upon affidavits showing strong prima facie case in support of motion, without any counter-showing as to condition of public mind in locality where defendant was to be tried, defendant is entitled to change of venue. People v. Fredericks, 106 Cal. 554, 558, 39 Pac. 944.

13. Unsupported statement of defendant. -Court is not bound to take for granted unsupported statement of defendant. And his mere unsupported assertion that he was victim of general prejudice in county is not conclusive reason for changing venue. -People v. Mahoney, 18 Cal. 180, 186.

acquiring jurisdiction.-People v. Suesser, 142 Cal. 354, 357, 75 Pac. 1093.

2. Papers necessary to be sent.-Only such papers as may be essential to proper trial of defendant's case de novo need be sent. Any papers which might be contingently necessary if forfeitures of undertaking should be desired may also be properly transmitted.-People v. Bush, 71 Cal. 602, 605, 12 Pac. 781.

3. Same-Transcript of record of former trial. It is not necessary, under this section, that certified transcript of record sent from county where cause was originally tried to county to which venue was changed shall contain bill of exceptions taken on trial of case in former county for purposes