IN BANK.
At the November term, 1928, of the circuit court for Wallowa county, Oregon, the defendant, Fred M. Black, was jointly indicted with one Harry Newberg, by the grand jury of said county, by which indictment they were jointly accused of murder in the second degree for the killing of one Leonard Olsen, within said county, on the 25th day of September, 1928.
Each of the defendants named in the indictment having pleaded not guilty thereto, and having been granted separate trials, the appellant, Fred M. Black, filed a motion for change of venue supported by affidavits of prejudice existing in Wallowa county so that he could not receive a fair and impartial trial and which motion was thereafter on the 22d day of December, 1928, denied by the court for said county. The defendant Newberg was first tried and found guilty. Defendant Black was afterwards tried in the circuit court for Wallowa county, on the 10th to the 12th of January, 1929, and the case submitted to the jury on the latter date; and on January 13 the jury was discharged from further consideration of the case on account of their inability to agree, the defendant remanded to the custody of the sheriff of said county, and the cause continued for retrial.
After the discharge of the jury, and while the cause was still pending in Wallowa county, counsel for appellant, it is claimed, informed the judge of the court that no renewal of said motion for change of venue would be made, and that the defendant would elect to be retried in Wallowa county. The trial judge did not remember such information. *Page 220
Defendant asserts that thereafter, on the 29th day of January, 1929, and about two weeks after the first trial, the Hon. J.W. KNOWLES, circuit judge, while in chambers at La Grande, Union county, Oregon, without any renewal of said motion for change of venue, and without any previous notice to defendant or his counsel to be heard, and while the defendant was confined in the county jail of Wallowa county, and his counsel absent from the place where the judge was then in chambers, made an order changing the place of trial to Union county, and setting the next trial in the latter county for February 13.
Immediately thereafter, and before the transfer of the case to Union county, the appellant made a special appearance in the circuit court of Wallowa county and filed a motion requesting that said order changing the place of trial be vacated and set aside, which motion was based upon the grounds: (1) The former order of the court denying the application for a change of place of trial was a final adjudication of the motion. (2) That the motion and application was never renewed. (3) That after the previous order denying a change of place of trial the case was tried in Wallowa county and the jury disagreed and were discharged. (4) That the reconsideration of said motion and application was made by the court in chambers at La Grande, Union county, without previous notice, upon the court's voluntary action without the presence of defendant or his counsel. (5) That defendant was given no opportunity to be heard in the matter as required by the constitution and laws of the state. (6) That the court had no jurisdiction to make the order in vacation or recess, nor at chambers outside of the county in which the cause was pending without the express consent of defendant. The motion was overruled and denied by the court. *Page 221
On February 13, 1929, the appellant having in the meantime been transferred from the county jail of Wallowa county to that of Union county, the cause was called for trial in the last named county, whereupon the appellant, through his counsel, renewed the objections to the cause being tried in Union county, which objection was overruled by the court to which ruling defendant saved an exception, and the objection and exception was allowed to run to all the proceedings had in the case and the trial was ordered to proceed.
At the close of the case in chief for the state the defendant, by his counsel, again raised the objection to the jurisdiction of the court to try the cause in Union county by reason of the venue having been improperly changed and by his motion requested the court to instruct the jury to return a verdict of not guilty, which motion the trial court denied upon the theory that the original motion for change of venue was still pending after the first trial of the cause and at the time when the second decision thereon was made.
A verdict of guilty of involuntary manslaughter was rendered and from a judgment and sentence defendant appeals assigning as error the ruling of the court above noted.
REVERSED. The acts constituting the alleged crime were committed in Wallowa county. See State v. Newberg, 129 Or. 564 (278 P. 568). The constitution of the state of Oregon directs that in all criminal prosecutions *Page 222 the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; Oregon Constitution Art. I, § 11; U.S. Const. 6th Amend.
Section 1391, O.L., provides, in part as follows:
"In an action for a felony, when the cause is at issue upon a question of fact, the court may order the place of trial to be changed, as follows:
"1. When it appears by affidavit, to the satisfaction of the court, that a fair and impartial trial cannot be had in the county where the action is commenced; * * *."
The right of defendant to a trial in Wallowa county could be waived by a proper application for a change of the place of trial under this section: 16 C.J., p. 203, § 305.
For a kind of setting, although not directly in point, we will refer to a few general rules. Numerous cases hold that, under a constitutional provision securing to accused a trial by jury in the county or district in which the crime was committed, the trial cannot be transferred to another county, on motion of the district or prosecuting attorney, over the objection, or without the consent, of accused: 16 C.J. 202, § 303 Notes.
We quote from 16 C.J., p. 28, § 312:
"It seems that the court has no power of its own motion to change the venue, unless such power is conferred by statute, as it is in some jurisdictions. But in Arkansas a statute authorizing a judge to remove a cause of his own motion has been held unconstitutional as in violation of a constitutional provision guaranteeing accused a trial by an impartial jury of the vicinage." *Page 223
That part of section 329, page 217 of the same volume, cited and relied upon by the district attorney reads thus:
"On change of venue, until the prisoner has been transferred, the court granting the change of venue can reopen the proceedings with a view to the modification or rescission of the first order, or or the substitution of another order."
In the case at bar the application for the change of the place of trial made by the defendant and denied by the court, after a trial of the case, in Wallowa county and a disagreement of the jury, and some time had elapsed, the condition and circumstances had so changed that we think the defendant in a felony case was entitled to be heard upon the question of revoking the former order and granting a change. The defendant promptly appeared by his attorney thereafter and was accorded a hearing. He requested the court to vacate the order granting a change of the place of trial and strenuously objected to such change. When the case was called for trial in Union county counsel for defendant renewed the objection to proceed with the case in Union county.
The former application of the defendant, under the circumstances of the case, had then become functus officio, so that the order granting the change was to all intents and purposes effectuated over the objections of the defendant. We think he did not waive his constitutional right to have the cause tried in Wallowa county and that the order changing the place of trial should have been revoked upon the hearing, and that the granting of a change of the place of trial was erroneous.
The revoking of the former order denying a change of the place of trial under the circumstances detailed *Page 224 was not analogous to the ordinary change or correction of a ruling of the court.
In view of the fact that the companion case of State v.Newberg, supra, in which Newberg was jointly indicted with this defendant, was before this court and an opinion rendered therein, we see no necessity for the consideration of other questions mentioned in the briefs.
The judgment of the trial court must be reversed and the cause remanded for a new trial. It is so ordered.
REVERSED.