The opinion of the court was delivered by
It is insistеd that the district court of Cheyenne county had no jurisdiction of this case on a change of venue from Decatur county because the
‘‘ Every order for a removal of any cause under the foregoing prоvisions shall state whether the same is made on the application of the party or on facts within the knowledge of the court or judge, and shall specify the cause of removal, and designate the county to which the cause is removed.”
I. It .is claimed upon the part of the state that a plea of not guilty was entered before the application for removal of the cause was granted, but that the plea was unintentionally omitted from the record. This, however, is immaterial. It is held to be better practice to arraign the dеfendant, and require him to plead to the information before making an order for a change of venue; but where the defendant aрplies for the change, and has the benefit of arraignment in the county to which the cause is transferred, he has no right to complain thаt the change was made before his arraignment. (Hudley v. The State,
II. It is next insisted that the district court of Cheyenne county committed error in entertaining jurisdiction of the cause after removal and requiring the defendant to plead to a certified transcript of the information. Not so. Nothing but a transcriрt of the record and proceeding is authorized to be transmitted by the district clerk to the county to which the case is removed. {The State v. Riddle,
III. .Tt is further insistеd that the removal of the cause from Cheyenne county, in the seventeenth judicial district, to Thomas countj^, in the thirty-fourth district, was without authority of law. By § 10 of the bill of rights, a defendant in a criminal cause is guaranteed a trial by a jury of the county or district in which the offense is alleged to have been committed. Undoubtedly the provision securing to the accused a public trial within the county or district in which the offense is committed is of the highest importance. It prevents the possibility of sending him for trial to a remote district, at a distance from friends, among strangers, and perhaps parties animated by prejudices of a personal or partisan character. But a defendant may waive his constitutional right or j)ersonal privilege by his consent. (The State v. Potter, supra ; In re Holcomb,
Again, 'when the cаse was called for trial in Thomas county, the defendant raised the question of the jurisdiction of the court, and objected to that cоurt proceeding with the trial. Under ¶ 1965, General.Statutes of 1889, of the act concerning district courts, a judge pro tem. may be selected “when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the partiеs, or otherwise disqualified to sit.” So, under the statute, a defendant may be tried before a judge pro teto., where the district judge is disqualified by interest or otherwise ; or he may, with his consent, have the cause removed to a different district. In this case there •was no express consent on the part of the defendant to have the cause removed from his distinct. The most that can be said is that he consented inferentiаlly to such removal by calling the court’s attention to § 173 of criminal code. He did not expressly request that the cause be transferred tо a different district under the provisions of that section. On the other hand, he expressly objected to the transfer. If counsel of the defendant misled the court at first in referring to § 173 of the criminal code, defendant is not concluded, because he objected to the ordеr
The judgment will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.