208 Mass. 162 | Mass. | 1911
The petitioners were indicted for a felony. Seasonably they presented motions, suggesting that because of “ local prejudice and other causes ” they could not have an impartial trial in the county of Suffolk, and asking that the proceeding be removed to another county for trial. Thereafter, an order was entered by a judge of the Superior Court,
The first question presented is whether mandamus lies in a case of this sort. It becomes necessary to determine the meaning of the indorsement made in the Superior Court upon the
The writ of mandamus is an extraordinary remedy, and is usually granted only when no other adequate relief can be afforded. It cannot be employed to supersede an appeal or exceptions in ordinary cases, and does not lie to review a final judgment. Proceedings of inferior tribunals within their jurisdiction in the exercise of the power confided in them cannot be revised in this way. It does not lie to correct errors committed in the course of trial, even though there be no remedy by exception or appeal. Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294, 297. Finlay v. Boston, 196 Mass. 267, 270. McCarthy v. Street Commissioners, 188 Mass. 338. In re Key, 189 U. S. 84.
But one of the ancient offices of this writ was to compel action by lower judicial tribunals respecting matters properly before them and within their jurisdiction. If such courts decline to exercise their judicature or to decide matters pending before them, mandamus has always been regarded as the appropriate means by which to set in motion their jurisdictional power. It lies to compel the performance of whatever appertains to the duty of lower courts, where there has been for any reason a refusal to act. Its agency in cases of this class is confined to set
It was the plain duty of the justices of the Superior Court to consider and exercise their judicial faculty upon the subject matter presented by the motions filed in that court, and either overrule them as matter of law or determine whether they ought to be granted. French v. Jones, 191 Mass. 522. Cheney v. Barker, 198 Mass. 356. As we construe the indorsement of the Superior Court upon the motions to be a mere refusal to act, and not the expression of any opinion or ruling, the provisions of R. L. c. 219, §§ 32, 35, authorizing an aggrieved defendant in a criminal case to appeal from a judgment of the Superior Court founded upon matter of law apparent upon the record and to allege exceptions to an opinion, ruling, direction or judgment upon any question of law, do not apply, and there appears to be no other adequate remedy open to the petitioners except this petition.
The issuance of the writ of mandamus is rarely, if ever, matter of right, and commonly rests in the sound judicial discretion of the court. It becomes necessary to determine whether the Superior Court in fact does have jurisdiction to entertain and decide the motions, for the reason that the writ ought not to issue when it can subserve no useful purpose to the petitioners.
The question to be determined is whether the Superior Court has jurisdiction to order a change of the place of trial from one county to another, if and when satisfied that a fair and impartial trial cannot be had within the county where the venue is laid in the indictment. This inquiry has never before been expressly presented for consideration and determination in this Commonwealth. “ But this, so far from affording a reason why it should not be fully examined, rather requires that it should be consid
It is essential first to examine the powers possessed and exercised by the courts of common law in England before the emigration of those who first settled this Commonwealth and brought with them as a part of their heritage the common law as it existed in England. We resort to a consideration of the common law of England previous to the grant of the Provincial Charter in 1691, because as was said in Commonwealth v. Knowlton, 2 Mass. 530, at 534, 535: “ Our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were judged inapplicable- to their new state and condition. The common law, thus claimed, was the common law of their native country, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as incorporated into the common law. Some few other English statutes, passed since the emigration, were adopted by our courts, and now have the authority of law derived from long practice. ... So much, therefore, of the common law of England, as our ancestors brought with them, and of the statutes then in force, amending or altering it, — such of the more recent statutes as have been since adopted in practice,—and the ancient usages aforesaid,—may be considered as forming the body of the common law of Massachusetts, which has submitted to some alterations by the acts of the Provincial and State Legislatures, and by the provisions of our constitution.” This language was quoted with approval in Sackett v. Sackett, 8 Pick. 309,316. Commonwealth v. Leach, 1 Mass. 59, 61. Phillips v. Blatchford, 137 Mass. 510, 513. This always has been the unquestioned law of the Commonwealth. The system of reporting decisions of the higher courts previous to the main emi
It was the common law that the indictment for a crime must be found and tried in the county where it occurred, and ordinarily this principle was applied with great strictness. Nevertheless in an early decision, Farewether’s case, Cro. Car. I. 348, decided in 1634, during a discussion as to the place of the trial, the clerk of the crown is reported to have said, “ That divers precedents have been of such trials upon indictments in banco without any consent of the parties, and against the will of the prosecutors, and in more remote counties.” The first trace of the practice, which we have been able to find, was in 1351 and is referred to in 1 Pike’s History of Crime in England, 479, in these words: “ An instance in which accused persons were to be tried at the Gaol Delivery of Newgate, because they were too powerful in their own district, appears on the Gaol Delivery Roll, 25 Edward III., Huntingdon, where there is a writ to that effect, directed to the Sheriff of Cambridge.” In Sacheverell's case, 10 How. St. Tr. 30, decided in 1684, jurymen were drawn from the county of Kent, although the crime prosecuted occurred in the county of Nottingham. In The King v. County of Nottingham, 2 Lev. 112, decided in 1675, trial was had in a county other than that where the offense was alleged to have been committed. In The Queen v. County of Wilts, 6 Mod. 307, [in 1705] Chief Justice Holt is reported to have said that “for the necessity of an indifferent trial” removal might be had into an adjacent county. To the same effect Sir Samuel Gerard’s case, Salk. 670 [1705], See also French v. Kent, Ld. Raym. 33 [1662]; Karl of Shaftsbury v. Cradock, 1 Vent. 363 [1683]; Anonymous, 1 Vent. 61 [1771]. In Rex v. Cowle, 2 Burr.
In.The King v. Holden, 5 B. & Ad. 347, Lord Denman said : “ I apprehend that the power of changing the place of trial whenever it is necessary for the purpose of securing, as far as possible, a fair investigation, is a part of the jurisdiction of this court;
Some of these decisions were made upon a petition for a writ of certiorari from the Court of Kings Bench to a lower court. The form of action, however, does not seem to be material. It is the general recognition of a power of removal for the purpose of securing a fair trial which is important. It is asserted in 1 Chit. Crim. Law, (2d ed.) 201, 371, 494, that it has long been the common law of England that, when an impartial trial cannot be obtained, the Court of Kings Bench has the power of directing the trial to take place in the next adjoining county. We are able to find no dissent from this apparently universal current of authority asserting that the Court of Kings Bench in England possessed the power. This review of authorities demonstrates that in 1699 the Court of Kings Bench in England had and in
It remains to ascertain whether this right of removal for a fair trial was a part of the common law brought over by the forefathers. By the Prov. Laws, 1699, c. 3, § 1 (Acts and Resolves of the Province of Massachusetts Bay, vol. I. p. 371), it was enacted, “ That there shall be a superiour court of judicature, court of assize and general goal delivery, over this whole province . . . who shall have cognizance of all pleas, real, personal or mixt, as well all pleas of the crown and all matters relating to the conservation of the peace and punishment of offenders as civil causes or actions between party and party . . . and generally of all other matters, as fully and amply to all intents and purposes whatsoever as the courts of king’s bench, common pleas and exchequer within his majesty’s kingdom of England have or ought to have.” This statute has frequently been referred to as a source of jurisdiction of the courts of this Commonwealth. Savage v. Gulliver, 4 Mass. 172,174. Commonwealth v. Johnson, 8 Mass. 88. Commonwealth v. Parker, 2 Pick. 550, 555. Washburn v. Phillips, 2 Met. 297. Puller v. Starbuck, 5 Cush. 493. Attorney Greneral v. Boston, 123 Mass. 460,471. Connecticut River Railroad v. County Commissioners, 127 Mass. 50, 58. Chapter 1 of the Province Laws of 1699 (Acts and Resolves of the Province of Massachusetts Bay, vol. I. p. 367) established a court of general sessions of the peace to be held by the justices of the peace of each county with a limited criminal jurisdiction but an unlimited right of appeal to the court of assize and general gaol delivery. It is not necessary to inquire, therefore, whether the Superior Court of Judicature had power to remove causes from the court of general sessions by writ of certiorari (see Cook, petitioner, 15 Pick. 234; Commonwealth v. Roby, 12 Pick. 496, 498), for all cases plainly could be brought before it on appeal. As the express terms of the statute conferred upon the Superior Court of Judicature all the jurisdiction possessed by the Court of Kings Bench in England, the right to grant removal to another county, in order that a fair trial might be bpd, seems to have been given it. It is plain, from the terms of this statute and what appears to have been the undisputed practice in England prior to 1699, that the Superior Court of Judi
When the Constitution of Massachusetts was adopted in 1780, c. 6, art. 6, provided that “ All the laws which have heretofore been adopted, used and approved, in the Province, Colony or State of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution.” The general body of jurisprudence which had heretofore existed was thus preserved and continued. By St. 1780, c. 17, an act approved February 20, 1781, the jurisdiction of the Supreme .Judicial Court was defined to be the same as “ By particular laws were made cognizable by the late Superior Court of Judicature, Court of Assize and General Gaol Delivery, unless where the Constitution and Frame of government hath provided otherwise.” An examination of statutes passed since respecting the jurisdiction of courts shows that the Legislature has manifested no intention, either expressly or by fair implication, to limit in this respect the powers of the higher courts as established by the Constitution and the legislation passed immediately thereafter. See St. 1782, c. 9. St. 1782, cc. 11 and 14, respectively, establishing a court of common pleas for the trial of civil causes and a court of General Sessions of the Peace for the trial of criminal causes both gave full right of appeal to the Supreme Judicial Court, and no substantial change was made by St. 1803, c. 154, which transferred to the court of common pleas the criminal jurisdiction of the court of General Sessions of the Peace. See also Rev. Sts. cc. 81, 82. When the Superior Court was established by St. 1859, c. 196, section 1 provided that it should “ have the same powers and jurisdiction in all actions and proceedings at law, whether civil or criminal, as the Supreme Judicial Court, the Court of Common Pleas, the Superior Court of the county of Suffolk, and the Municipal Court of the City of Boston now have,” with exceptions not here material. This statute conferred upon the Superior Court powers of general jurisdiction theretofore exercised by the Superior Court of Ju
It is true that there are dicta in early cases to the effect that such power did not exist. In Lincoln County v. Prince, 2 Mass. 544, it was said in a per curiam opinion upon a plea in abatement in an action brought by a county against a citizen of another county where a statute authorized such action in the court of the county of the defendant’s domicil, after discussing some other matters not directly involved, that “ All these difficulties would be removed by investing this court with power to adjourn any cause, from a county where an impartial trial cannot be had, to an adjoining county, for a trial by disinterested and unexceptionable jurors. This power we do not possess.” There was nothing before the court involving this question, however. The force of the decision on the point'decided was somewhat limited in Gage v. Gannet, 10 Mass. 176. Hawkes v. Kennebeck, 7 Mass. 461, was also an action against a county which went to the full court only on a plea in abatement as to the teste of the writ, and in an opinion directing the writ to be quashed Chief Justice Parsons in the course of the reasoning said by way of dictum: “ If this court had a power, which it has not, of ordering an action commenced in one county to be tried in another, when impartial justice required it,” and “ that every action must, in this State, be tried in the county in which it is commenced.” It is also to be noted that these dicta were spoken concerning causes commenced in the Court of Common Pleas, which was a distinct and separate court established for each county, composed of four judges, all of whom were required by law to be residents of the county for which they were appointed. See St. 1782, c. 11. It may be that as to causes arising in a court of that kind the power
These are the only cases in this Commonwealth in which there is any reference to the subject. While dicta even of such a character are entitled to respect, they are not of binding authority, and uttered as these were without any apparent investigation respecting a question involving considerable historical research which fortunately has rarely arisen here, they are not to be regarded as of controlling significance.
Special Provincial laws were passed making provision for a change in the usual course of trial in particular cases. See St. 1712-1713, c. 7 (1 Prov. Laws, 701) setting forth in its preamble a complaint by “ divers Indian sachems ” on Nantucket that they could not secure fair trials in the usual courts. St. 1744-1745, c. 8 (3 Prov. Laws, 156). Jonathan Belcher, who had been Governor of the Province from 1730 to 1741, petitioned that a cause in which he was interested pending in Bristol County might be removed to another county because of local interest, but the Legislature directed the summoning of jurors from the county of Suffolk to attend at Taunton in the county of Bristol. Res. 1747-1748, cc. 138, 278; 1749-1750, c. 353; 1750-1751, cc. 7, 91 (14 Prov. Laws, 55, 111, 402, 411, 445). Similar action was taken in behalf of Ebenezer Salisbury, who had an action pending as to the same subject matter as Governor Belcher. Res. 1750-1751, c. 293 (14 Prov. Laws, 525). See also Joseph Buck-minster’s case, Res. 1742-1743 (13 Prov. Laws, 142), and that of Timothy Prout, Res. 1752-1753, c. 47 (14 Prov. Laws, 648).
Numerous other statutes have been referred to by the learned
Since the adoption of the Constitution, several statutes have been passed enlarging the venue of actions, in order to secure trials before indifferent jurors in actions for the most part though not exclusively to which the counties, the city of Boston (which constitutes by far the larger part of Suffolk County in populatian, wealth and area), the town of Nantucket, the towns of Dukes County and the Commonwealth are parties. Sts. 1810, c. 127; 1866, c. 233; 1879, c. 255; 1877, c. 234, § 5; 1808, c. 19; 1816, c. 103; 1828, c. 13; 1885, c. 384, § 14. R. L. c. 167, §§ 4-6, 8, 9. Sts. 1904, c. 320; 1910, c. 63. Other statutes have permitted or directed trials of causes arising in one county to take place in another. St. 1871, c. 240, § 1, authorized a change in capital cases upon the petition of the defendant whenever in the opinion of the court an impartial trial could not be had in the county where the cause was pending. R. L. c. 157, §§ 12-15. St. 1887, c. 347, gave similar power to the Supreme Judicial and Superior Courts in all civil causes to be exercised upon applicatian of either party. R. L. c. 167, § 12. Thus by express enactment the Legislature had conferred the power upon the higher courts as to all causes except crimes less than capital. In the light of the history of our common law and the jurisdiction of our courts, we are of opinion that these statutes, so far as they empower a transfer in order to secure an impartial trial, are but declaratory of the common law and confer no new power. A
The weight of opinion in those of the older States,, whose judicial history is most nearly like our own, supports the view that it is an inherent power of common law courts to order a change for the purpose of securing an impartial trial. Cochecho Railroad v. Farrington, 26 N. H. 428 at 436, held that the power of the courts of England to transfer the trial of transitory actions “ became thoroughly engrafted upon the common law, long before the independence of this country; and from that time forth, not only has the practice prevailed in the courts of England, but the power is now exercised by the courts of very many if not all of our States, either by force of express statute or the adoption of the common law into the jurisprudence of the same. ” State v. Albee, 61 N. H. 423, involved the precise question here presented. It arose under a constitution which provided that “In criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offense ought to be tried in any other county than that in which it is committed, except in cases of general insurrection in any particular county, when it shall appear to the judges of the Superior Court that an impartial trial cannot be had in the county where the offense may be committed, and, upon the report, the Legislature shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained.” By act of 1692 the Superior Court of New Hampshire was given the jurisdiction of the English Court of Kings Bench. Yet notwithstanding the language of the Constitution, it was held that the court possessed common law power to change the place of trial of a criminal cause in order to secure an impartial trial in the absence of any statute, it being said in the opinion: “ Occasions sometimes occur when from a combination of circumstances popular prejudices are aroused, and bitterness of feeling fills the popular mind. Jurors, because they-
In Commonwealth v. Balph, 111 Penn. St. 865, where the same question in principle was under consideration, it was held that the court had power to transfer a cause to secure an impartial trial, and after citing some of the English cases to which we have referred it was said: “ This is the settled law of England, and in this country, in those States in which the Supreme Court is clothed with Kings Bench powers the same rule prevails.” To the same effect see Commonwealth v. Delamater, 145 Penn. St. 210; Commonwealth v. Smith, 185 Penn. St. 553, 565; Quay’s petition, 189 Penn. St. 517, 540, 541; Commonwealth v. Ronemus, 205 Penn. St. 420, 424. In Negro Jerry v. Townshend, 2 Md. 274, at 278, it was said: “ All laws for the removal of causes from one vicinage to another, were passed for the purpose of promoting the ends of justice, by getting rid of the influence of some local prejudice which might be supposed to operate detrimentally to the interests and rights of one or the other of the parties to the suit. This is a common law right belonging to our courts, and as such can be exercised by them in all cases, when not modified or controlled by our constitutional or statutory enactments.” Price v. State, 8 Gill, 295, 310 et seq.
It was held in People v. Peterson, 93 Mich. 27, 28, 31, that, although there was a statute dealing with the subject, the statute was “ but declaratory of the common law power vested in
The same view is held in New York, where in Jones v. People, 79 N. Y. 45, 49, it was said that the power was inherited from the English Court of Kings Bench. People v. McLaughlin, 150 N. Y. 365, 375. People v. Vermilyea, 7 Cowen, 108, 130, 139. People v. Webb, 1 Hill, 179, 182. People v. Bodine, 7 Hill, 147. People v. Jackson, 114 App. Div. (N. Y.) 697. The same rule prevails in Minnesota, where it was said that a statute to that effect was merely declaratory of the common law. State v. Miller, 15 Minn. 344, 349. In a well considered opinion reviewing somewhat the authorities, the same conclusion was reached in Barry v. Traux, 13 No. Dak. 131, 137-148.
In Kendrick v. State, Cooke, (Tenn.) 474, and Bob v. State, 2 Yerg. 173, 183, it was held that a removal should be granted under common law powers where a cause was made out that “ because of the public clamor, justice could not, in all likelihood be done the person charged in the county where charged.” It may be inferred from Weakley v. Pearce, 5 Heisk. 401, 414-423, arising after the adoption of a new constitution in Tennessee, that these older cases do not declare the present practice in that State, probably on the ground that the whole subject has been covered and minutely regulated by statute. See also Ex parte Williams, 4 Yerg. 579.
There are authorities collected in a footnote
This review demonstrates that the great weight of authority supports the view that courts, which by statute or custom possess a jurisdiction like that of the Kings Bench before our revelution, have the right to change the place of trial, when justice requires it, to a county where an impartial trial may be had.
If the matter is considered on principle and apart from authority, the same conclusion is reached. It is inconceivable that the people who had inherited the deeply cherished and hardly won principles of English liberty and who depleted their resources in a long and bloody war to maintain their rights as freemen, should have intended to deprive their courts of the power to secure to every citizen an impartial trial before an unprejudiced tribunal. The people of the Commonwealth solemnly avowed in their Declaration of Rights, art. 29, that “ It
The purpose for which courts are established is to do justice. A fundamental principle of free institutions was stated by Hamilton in these words: “Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger.”
Considerations based upon historical research, authority and sound principle lead to the conclusion that it was within the jurisdiction of the Superior Court to consider and grant the motions filed by the several petitioners here, defendants in that court, if upon investigation it was found that a trial before an indifferent jury could not be had in Suffolk County. Such a motion is not technically for a change of venue, but only for a change as to the place of trial by jury. Where a plain case is made out, a record should be made that an impartial trial cannot be had in the county where the indictment is laid, and the cause ordered transferred for trial to another county at a regular sitting of the court there. The indictment remains unaltered as to venue, and all other proceedings upon it except the trial by jury should be in the county where the indictment is found.
That this question never has been presented for determination before is strong proof that there has been no occasion for the exercise of that power. Such a motion ought not to be granted upon mere suggestion, nor unless the reason for it is fully established. It is a jurisdiction which should be exercised with great caution and only after a solid foundation of fact has been first established. Manifestly it should be resorted to only in aid of justice, and it should not be permitted to be employed as an instrument of obstruction or as a means of delay. But if the Superior Court is convinced that a fair trial cannot be had in any county where an indictment is found, it has the right and ought to order the cause removed to such near by county as will furnish a jury which would be impartial.
Writ to issue.
Wait, J.
The case came before Rugg, J., who ordered that the petition be dismissed, and, at the request of the petitioners and with the consent of the respondents, reserved the case for determination by the full court.
Adams v. People, 12 Ill. App. 380, 382. Millison v. Holmes, 1 Ind. 45, 46. State v. Smith, 55 Ind. 385, 386. Weakley v. Wolf, 148 Ind. 208, 219-221. In re Griffin, 33 Ind. App. 153, 154. In re Darrow, 83 N. E. Rep. (Ind.) 1026. Meunch v. Breitenbach, 41 Iowa, 527, 529. Zelle v. McHenry, 51 Iowa, 572, 575. Lightfoot v. Commonwealth, 80 Ky. 516, 523. Byram v. Holliday, 84 Ky. 18, 21, 22. Powers v. Mitchell, 75 Maine, 364, 369. Wilson v. Rodewald, 49 Miss. 506, 511, 512. Wessinger v. Mausur Tibbetts Improvement Co, 75 Miss. 64, 71. Wilkerson v. Jenkins, 77 Miss. 603, 606. State v. Sanders, 106 Mo. 188,194. State v. Wofford, 119 Mo. 408,410. State v. Dyer, 139 Mo. 199, 209. State v. Lanahan, 144 Mo. 31, 38. State v. Headrick, 149 Mo. 396, 403. Raming v. Metropolitan Street Railway, 157 Mo. 477, 487. State v. Barrington, 198 Mo. 23, 84. State v. McGehan, 27 Ohio St. 280, 284. Stanley v. United Stales, 1 Old. 336, 340-342. Commercial National Bank v. Davidson, 18 Ore.