People v. Yoakum

By the Court, Wallace, C. J.: The prisoner having been found guilty of the crime of murder in the-first degree in the felonious killing of one Johnson, brings this appeal from the judgment of death rendered against him thereon, and from an order denying his motion for a new trial. Upon the argument of the case several alleged errors were relied upon, but the conclusion to which we have arrived, upon one of these will render unnecessary the consideration of the others.

[567]The prisoner before the trial made an application, in conformity to the provisions of the Penal Code, for the removal of the case from the County of ICern, where it was pending and subsequently tried, on the ground that a fair and impartial trial could not be had in the said County of Kern. The application was denied, and the prisoner excepted.

The statute (Penal Code, sec. 1095) provides that if the Court be “ satisfied that the representation of the defendant is true, an order must be made for the removal of the action to the proper Court of a county free from like objection.” An application of this character is addressed, as we have said here in other cases, somewhat to the discretion of the Court; its allowance or refusal was characterized in People v. Congleton as “largely discretionary.” (44 Cal. 95.) The Court must be satisfied, is the language of the statute. The discretion of the Court invoked by the application is not, however, a mere arbitrary discretion, but a discretion the exercise of which must be reasonable. The conclusions reached on the application must be such as find warrant in the facts disclosed by the affidavits filed, and in the circumstances made to appear in the record. In the cases in which the refusal of the Trial Court to order a change of the place of trial has been sustained here, the affidavits filed in support of the application were in themselves indefinite, and therefore unsatisfactory; they stated no facts or circumstancs from which the Court might justly infer that a fair trial could not be had. In some instances the mere opinion of the affiants that an impartial trial could not be had was set forth; in others the facts stated did not support an inference that any such prejudice existed in the popular mind as would interfere with the impartial administration of the law. Thus in People v. Congleton, supra, we said: “ In this case the affidavits upon which the motion was based were exceedingly unsatisfactory; they, in the main, set forth merely that in the opinion or belief of the affiants the prisoner could not have a fair trial, owing to the popular prejudice against him.” So in People v. Thuler: “ The defendant’s affidavit docs not establish the fact that the people of the County of Butte were so prejudiced against him as to become disqualified to sit as jurors in this case. The statement in this respect