On Petition for Rehearing.
Browne, J.The petition for rehearing urges that the court overlooked and failed to consider that the application for a change of venue by the State was made on the ground, contained in Section 6099, Revised General Statutes, that “a fair and impartial trial cannot be had in the county where the crime was committed.”
This was not overlooked, and it was intended to be covered in the opinion, but as it seems not to be clear to the petitioner, we will discuss it more fully.
Section 11 of the Bill of Rights of the Constitution of Florida, provides: “In all criminal prosecutions the accused shall have the right of a speedy and public trial, by an impartial jury, in the county where the crime was committed. ’ ’
In the case of O’Berry v. State, 47 Fla. 75, 36 South. Rep. 440, the court set out in its opinion all the statutes relating to change of venue, including Section 2927 Revised Statutes of 1892, which provided: “When it shall appear to the satisfaction of the court by affidavit that a fair and impartial trial cannot be had in the county where the crime was committed, the court may direct the ae*44eiisecl to be tried in some adjoining county where a fair and impartial trial may be had, but the accused shall be entitled to but one change of the place of trial.
It is true, that in that case, and in Hewitt v. State, 43 Fla. 194, 30 South. Rep. 795, changes of venue were granted because “it was impracticable to get a qualified jury to try the case,” but the rule of organic law laid down in those cases, applies as well to the Act of 1868, Chapter 1637, Sub-Chapter 13, Section 13, relating to a change of venue on the ground that a “fair and impartial trial” cannot be had in the county where the crime was committed, as to the Act of 1845, No. VII, page 22, Territorial Acts 1845, relating to a change of venue on the ground “that it is impracticable to get a qualified jury” to try the case in the county where the crime was committed. Both Acts are condensed in Section 6099 Revised General Statutes of 1920.
In the O’Berry case, supra,, after embodying in the statement, all the statutes relating to change of venue, said: “The above cited section of the Declaration of Rights in the Constitution and all of the above cited statutes were before this court for consideration and construction in the ease of Hewitt v. State, 43 Fla. 194, 30 South. Rep. 795. The second headnote of the opinion in that case is as follows: ‘ The statutes in force in this State in reference to change of venue in criminal cases without the consent of the accused (sections 2928 and 2929, Revised Statutes, and chapter 4394, "laws of 1895), authorize the court to direct a change of venue when an impartial jury cannot be secured in the county where the offense is alleged to have been committed, and limiting their meaning to authorize the change without the consent of the accused when it is impossible to secure an impartial jury in the *45county where the offense was committed, they are constitutional. ’
“We are of the opinion that the conclusion reached in said case and the principles enunciated in the opinion rendered therein are correct.” (Italics are ours.)
It seems quite clear that this court held in these cases that any attempt to deprive the accused of his right to he tried in the county where the crime was committed, except where it is practically impossible to procure an impartial jury, and this practical impracticability is established by an actual test, or where it is impossible to procure a jury where “there are not a sufficient number of registered voters to form a grand and petit jury,” is in violation of the Constitution. This doctrine we adhere to and affirm. . (
The petition for rehearing is denied.
Taylor, C. J., and Ellis, Concur. Whitfield, P. J., and Terrell, J., Concur in the opinion.