5 Ark. 190 | Ark. | 1843
By the Court,
It is evident in this case that the court erred in arresting the judgment upon the ground that, in a change of venue, it is necessary that the petition of the prisoner, or a copy thereof, should be contained in the transcript forwarded to the court having cognizance of the cause. Such is neither the words nor the intention of the act. The order of removal or change of venue, is required to be made upon the petition of the prisoner, unless the judge should be satisfied upon his own knowledge, that he cannot have the benefit of a fair and impartial trial, and then he has a right to make an order of removal or change of venue, without any application or petition on the part of the prisoner. Is is clear that it is the order of removal or change of venue, which gives jurisdiction to the circuit court to try the cause, to which it has been removed, or the change of venue had, and not the petition of the prisoner for such removal or change of venue. Rev. St. chap. 45, sec. 121 to 139. Sec. 131 of the act, makes it the duty of the clerk to make out a transcript of the proceedings, and to transmit them, under the seal of his court, to the clerk of the court to which the cause is removed: and sec. 132, declares that, upon the reception of such record, the same proceedings shall be had in the cause, in all respects, as should have been had where it originated. The jurisdiction of the court, where the cause is directed to be tried, is precisely the same as it would have been had it been determined in the county in which the olfence had been committed; and that jurisdiction arises exclusively out of the order of removal or change of venue, and is to be exercised in conformity to its authority.
The court here arrested the judgment, and that arrest is unquestionably erroneous, and is set aside; and there being no error perceived in the conviction, the same is directed here to be reinstated on the rolls, and the judge to issue his warrant according to law to carry the same into execution.