5 How. Pr. 23 | N.Y. Sup. Ct. | 1850
In support of this motion, the defendant shows by affidavit, that he has 175 witnesses residing in the town of Stephentown in the county of Rensselaer, each of whom, as he expects to prove, voted for him for the office of Justice of the Supreme Court at the last election; and one other witness in that town who acted as clerk of said election. He proves that he has three witnesses residing in the town of Greenbush and tv o in the town of Lansingburgh in said county, and states -wliat he expects to prove by each of them.
If this position is tenable, it is only applicable to the witnesses residing in Stephentown; and it would still leave the greater number of witnesses residing in Rensselaer, with the additional reason that all the facts in controversy occurred there.
But it is settled by authority that this position is not tenable. In Hull vs. Hull (1 Hill R. 671), a motion was made to change the venue from Allegany to Cattaraugus, on an affidavit that the defendant had fifteen witnesses in the latter county. It was shown, in opposition to the motion, that the defendant’s witnesses resided nearer to the court house in Allegany than to the court house in Cattaraugus; viz: 25 miles from the former and 27 miles from the latter. But the court granted the motion, and Bronson; J., said, “ on a question of venue, we look to the county in which the witnesses reside, rather than the distance they will have to travel. As a general rule, the convenience of witnesses will be best consulted by having the trial in the county where they reside. That course will be less likely to disturb their social and business relations, than calling them into a foreign county.”
The case cited would be an authority for removing the cause to Rensselaer, even if the distance had been nearer to Hudson than Troy. But it is shown to be five miles farther; and if the
But I regard the case cited as being placed upon the true ground, and it is, of course, decisive on this point.
It appears, then, that there is a very large number of witnesses residing in the county of Rensselaer, whose convenience will be best promoted by trying the cause there; and that all the facts to be enquired into occurred in that county. That is, therefore, emphatically the proper place for trial, unless the second point made on the part, of the plaintiff is well taken, which is, that a fair trial can not be had there.
The plaintiff produces affidavits made by several persons residing in each town of the county of Rensselaer, stating in substance, that the. matters in controversy have been the subject of general conversation and comment throughout the county; that feelings and prejudices exist, and that they believe the electors of the county have, generally and almost universally, formed and expressed an opinion on the merits, which they would not be likely to change. They also show that such matters have been the subject of newspaper discussion in said county, and that there has .been and is much excitement on the subject; and they conclude, by stating that for these and other reasons, they believe that it is very doubtful whether a fair and impartial trial can be had in said county of Rensselaer.
It will be necessary to examine the decisions bearing upon this point, for the purpose of ascertaining whether the facts shown and opinions thus expressed, furnish a sufficient reason for refusing this motion.
Bowman vs. Ely, et. al. (2 Wend. R., 250), was an action brought for the publication of a handbill, alleged to be libellous, issued immediately before an election, by the defendants, styling themselves the anti-masonic, central committee. The defendants moved to change the venue from Oneida to Monroe, on
The same rule was followed in Messenger vs. Holmes (12 Wend. R., 203), where a motion was made to change the venue, on the ground of excitement, after two trials of the cause, in neither of which the jury were able to agree. The court held that the case came within the principle stated in Bowman vs. Ely, and granted the motion. Savage, Ch. J., said, “ when it is found by actual experiment, that á fair trial, or, as in this case, no trial can be had in the county where the venue is laid, the' motion, on the ground relied on in this case will be granted: but otherwise not.
But it is claimed, on the part of the plaintiff, that the rule thus laid down in the cases above referred to has been changed by the case of The People vs. Webb (1 Hill, 179), where, without an attempt to try the cause, the venue was changed from Otsego to Montgomery, on motion of the district attorney, on the ground of excitement and improper influence in the former county. The rule was certainly so far relaxed, in the last cited case, as to hold that an actual experiment, by way of trying the cause, or attempting to empannel a jury, was not the only evidence the court would receive, as proof that a fair and impartial trial could not
In the latter case of The People vs. Bodine (7 Hill, 181), an application was made to change the venue from Richmond county to New York, which was refused, notwithstanding there had been one trial in Richmond in which the jury did not agree. Ch. J. Nelson there stated that he had examined the subject with á view to endeavor to settle some rule, by which cases of that kind might thereafter be governed. He held that it was not enough for persons to state their belief that a fair and impartial trial could not be had in the county, but that the facts and circumstances forming the grounds of such belief, must be stated, so that the court may judge for itself whether or not the allegation is well founded; and that the inability to obtain a fair and unprejudiced jury must be clearly established. To this extent, the rule is consistent with all the cases above examined, and also with other authorities, which I have not deemed it necessary particularly to refer to (Rex vs. Harris, 3 Burr. 1330; 1 Black. Rep. 378, S. C.; 1 Chit. Cr. Law, 200; Roscoe Crim. Ev. 236; The People vs. Vermilyea, 7 Cowen, 137).
In The People vs. Bodine, it vims said that the rule there recognized was founded in good sense, and that its practical operation would prove an essential check upon the facility with which motions may be got up, from a too ready apprehension of undue prejudice.
In applying this rule to the case now before me, I am at a loss to see how it will exclude the cause from the county of Rensselaer. The inability to obtain a fair and unprejudiced jury must be
This case is entirely unlike that of The People vs. Webb, which is the only one cited, or that I have found, in which a change-of venue was granted on the ground of excitement, without a previous attempt to empannel a jury. Here has been no undue or improper influence exerted on either side. Here it does not appear that one, more than the other of the parties, is likely to be benefitted or injured by any possible prejudice or bias. Both stand upon equal ground; and the high character of the contestants, and the nature of the controversy forbid the supposition that either of them would, if it was in his power, avail himself of any preconceived impressions existing in the community, or permit any considerations of personal advantage, to interfere with a fair and candid examination of the questions of fact to be tried.
I find nothing in this case to warrant a departure from the well settled practice of the court. The cause should be tried where the controversy arose, and where nearly all the witnesses reside.
Motion granted.