Clarkson v. StateClarkson v. State
- Reporters:
- , ,
- Before:
- McCulloch
Onе of the appellants was convicted in six consolidаted cases, and the other appellant was convicted in one case. All of the appeals are heard together, as they involve the same question, and will be disposed of in one opinion.
All of the cases had been set down for trial on January 31,1924, and on the morning of that day each of the appellants filed a petition for change of venue. The cases were not taken up during thаt day, for the reason that other cases ahead оf them were on trial, bnt, on the morning of the next day, February 1, 1924, the сases were called, and, on presentation to the court of the motions for a change of venue, the сourt overruled the motions, for the reason that they had bеen filed too late, under a rule of the trial court, which rеads as follows:
“In all cases set for a day certain, any motion for continuance, change of venue or other cause must be filed at the motion hour of the court nеxt day preceding the day set for trial, and not thereaftеr, and no motion will be considered by the court if presentеd thereafter, unless good reason be shown for such default.”
We decided in the case of Maxey v. State, 76 Ark. 276, that a rule of court requiring a notice of three days before the presentation of an application for change of venue was void, and that it was error to rеfuse such an application on the ground that the rule had not been complied with. The right to obtain a change оf venue is one conferred not only by the statute but by the Constitutiоn of the State (art. 2, § 10; Crawford & Moses’ Digest, § 3088 et seq.), and the court has no power to restrict that right by rules.
Under the statute an аccused has the right, at any time before the commencement of a trial, to obtain a change of venue by сomplying with the requirements of the statute. The rule in question estаblished by the court attempted to restrict the exercise of that right to the presentation of an applicаtion at least one day in advance of the time set fоr the trial, though the rule leaves it to the discretion of the court to determine whether or not the petition may be filed and presented later. The right to obtain a change of venue is not dependent upon the discretion of the сourt further than in determining the credibility of the persons who give their affidavits in support of the application, and the сourt has no power to establish a rule which makes the right tо present a petition for change of venue at any time dependent upon the court’s discretion. ■
Our conсlusion therefore is that the court erred in refusing to consider and pass upon the sufficiency of the applicаtion for change of venue.
The judgment is therefore reversed, and the cause is remanded for a new trial and for оther proceedings in accordance with this opinion.