People v. Mahoney
Before: Baldwin
Synopsis
Defendant, indicted in the Court of Sessions of San Francisco for larceny, moved for a change of venue on his affidavit that the presiding Judge of the Court was in 1856 an active member of the “ Vigilance Committee,” which had banished defendant from the State on grounds not connected with the present charge, and that hence he could not have a fair and impartial trial: Held, that the Judge was not disqualified to sit on the trial.
A Court is not compelled to change the venue in a criminal case on the unsupported affidavit of defendant that he cannot have a fair and impartial trial because he is the victim of a general prejudice in the county. Nor does a failure to get a jury on the first day of trial, because of opinions formed, so confirm the affidavit of defendant as to make it error to refuse to change the venue upon a renewal of the application. The Court is to exercise a reasonable discretion as to a change.
Where a juror stated in substance that he had road in the papers about defendant, and of his being sent away by the Vigilance Committee of 1856, and that his impressions, derived from the papers and from hearing about defendant, were and now are that he was a bad man, and that he supposed it would- require evidence to remove those impressions; that lie should think defendant more likely to be guilty of a crime than a man of whom he had never heard these things; that he was not conscious of any prejudice or bias against defendant which would prevent his giving him a fair trial; and that he would endeavor to be governed by the evidence: Held, not to bo sufficient ground of challenge for implied bias.
The charge to the jury in this ease, on the question of recent possession of stolen goods : Held, not to be wrong.
Baldwin, J. delivered the opinion of the Court Cope, J. concurring.
1. The mere fact that the County Judge belonged to an illegal association, as alleged in the affidavit, whose committee exiled the [186]' defendant on grounds unconnected with the present charge, does not show any legal incapacity to sit on the trial. If the Judge acted illegally on the trial, or denied the prisoner his legal rights, this would be good cause on appeal for the reversal; but we cannot undertake to say that this consideration operated a legal disqualification of the Judge to sit.
2. The mere affidavit of the defendant does not render it obligar tory on the Court to change the venue. The statute (Wood’s Dig. 294, sec. 314) declares : “ If the Court be satisfied that the representation of the defendant be true, an order shall be made for the removal,” etc. It is evident, therefore, that the Court is not bound to take for granted the unsupported statement of the defendant, and assign it conclusive effect. A reasonable discretion is to be given to it on this subject, and while we should not be disposed to hold an arbitrary refusal to change the venue as warranted, yet we think the mere unsupported assertion of the defendant, that he was the victim of a general prejudice in the county, is not a conclusive reason for changing the venue, when it is so easy to obtain corroboration of the statement, if it were really true. Nor did the failure to get a jury on a particular day afford such confirmation to the statements of the affidavit as made it error in the Court to refuse to change .the venue on the renewal of the application.
There was no error in the refusal to reject the juror, Dundass, for implied bias, nor in the charge to the jury.
Judgment affirmed.
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