State v. Wheat

Citations

• 111 La. 860
• 35 So. 955
• 1903 La. LEXIS 573

Syllabus

<p>CRIMINAL LAW—CHANGE OF VENUE—APPLICATION BY STATE—AFFIDAVITS—TESTIMONY AT FORMER TRIAL.</p> <p>' 1. The only requirement of the statute (Act No. 95, p. 150, of 1876), relating to applications on part of the State for change of venue in criminal cases, is that it shall be- established by legal and sufficient evidence a fair and impartial trial cannot be had in the parish where the indictment is laid.</p> <p>2. A marked distinction is observable in the law relating to applications made by the State for changes of venue and those made by the accused. When the latter makes it the law requires the application to be accompanied by affidavit setting forth the applicant has good reason to believe that by reason of prejudice existing in the public mind, or by reason of some other sufficient cause, which must be described, he cannot obtain an impartial trial in the parish where the prosecution is pending.</p> <p>3. The State is not required to present such a preliminary affidavit, nor to set forth existing prejudice in the public mind, or other causes as grounds for its inability to obtain an impartial trial. All it has to do is to set up in general terms its inability to obtain such a trial and this, it would seem, warrants going into a general inquiry touching the issue thus raised.</p> <p>4. The State does not abandon its motion for change of venue by reason of the fact that the motion was not pressed to trial at the term of court at which it was filed, nor at a subsequent term; nor is the setting of the case for trial, when the docket is called for such purpose, to be taken ipso facto as abandonment of the motion.</p> <p>5. Changes of the venue rest largely in the sound discretion of the trial judge, weighing and judging the evidence submitted to him, and his ruling is not to be disturbed unless manifestly erroneous.</p> <p>6. It is not alone where the witness is dead, nor permanently absent from the State, that his testimony taken on preliminary examination, with oppo