I have nothing to add, except to "ex press my concurrence in the opinion delivered by Mr. Justice Woodworth ; and to say that Mr. Justice Sutherland (now absent) also concurs.
On this decision being pronounced,
D. Salden, for all the defendants, except Barker, moved that the cause be sent down for trial on the civil side; that the venue be changed from the city and county of Mew __ , _ , , , . .... York, to some other county, which the court might designate ; and that the court should also pronounce on a question which appeared on the return, relative to a variance between the indictment and the evidence given in the court below; a variance which he contended was fatal; but which the court below overruled as immaterial.
The motion to change the venue was founded on an affidavit of Yermilyea, that the defendants pleaded separately, not guilty; that after one trial of this cause at the oyer and terminer of Mew-York, in September, 1826, which lasted 25 days; the jury disagreed, and were discharged ;*that the cause was again tried in the same county, in Movember next thereafter ; and lasted 12 days. That during these trials the court room and the avenues and passages, were *131i crowded with spectators, a portion of whom expressed their -hostility to the defendants, by clapping hands, stamping and other means. That it appeared that most of the matters of complaint against the defendants were entirely distinct 5 but owing to the frame of the indictments, and the !r.ules adopted on the trial, they were admitted in evidence; and that various transactions' were proved, with which, part of the defendants appeared to have had no connection ; that owing to the failure of two certain incorporated companies who had practiced issuing bonds for the payment of money, held by, and yet unpaid, in the hands-of great numbers, mostly, if not entirely, in the city of Eew-York, and with each of which companies some of the defendants were connected, and the losses sustained by several other incorporated companies in the city, which losses were sought to be fixed on the defendants or some of them, added to other causes of individual dislikes, an extent of hostile feeling had been excited against the defendants in the city, which the deponent believed almost commensurate with its population. That the bond and stockholders'of the companies named, and those interested therein, were very numerous; and they, and those connected with them by ties of interest or relationship, comprehended a very large body of the people in the city.
That during the first trial, portions of the testimony and proceedings were published from day to day in some of the daily papers. That all the evidence, in many important respects erroneously stated, and injuriously to the defend? ants’ characters, was published after the jury retired, and before they returned, as the deponent believed, in all the daily papers of the city. That only parts of the testimony on the second trial were published, with the opening of the district attorney, and the charge of the judge; but not the speeches of counsel. That the charge was *calculated to excite public feeling against the defendants. From the above circumstances and others, the deponent believed, that the defendants could not have a fair and impartial trial in the city. That seven other indictments against other defendants, a portion of them including the nreseut defendants, *132or some of them, had also been found in the city, the sub- ’ J . ject of which, the deponent believed, came under examination in the trials of the indictment in this cause.
H. Maxwell, (district attorney,) read an affidavit of one of the marshals of the city, that he constantly attended both trials, to which his attention was directed. He believes that many attended from mere curiosity. That the clapping, stamping and other indications referred to in Yermilyea’s affidavit, took place during the trials when the the conduct of the defendant (Barker) was referred to; and were exhibited as well on one side as the other. That during the speeches of Barker, the audience seemed pleased and manifested their feelings several times by voice and movements of various kinds. That he did not believe any persons attended with a view of making any impression on the minds of the jury against the defendants. That during the examination of witnesses on the second trial, very few persons attended; and during that time, no intern* perate or improper conduct of any kind was manifested by any of the persons attending. That the speeches of Barker were published in the newspapers; and that he had published a pamphlet containing many matters respecting the trial. That from his opportunity of hearing the expression of public opinion, he believed there could be no difficulty in obtaining a jury in New York.
It further appeared from the certificate of the clerk of-the oyer and terminer, that a great number of jurors were returned at each of the terms at which the respective trials took place j and that juries were formed for both trials after very few challenges.
Seldom,, after discussing the question of variance, proceeded to that branch of the motion, which sought a *change of venue. In support of this, he relied mainly upon what was said by Ld. Mansfield in Rex v. Cowle, (2 Burr. 859, 60,) that “ where an impartial trial cannot be had in the proper county, it shall be tried in the nextand what he said to the same effect in Rex v. Harris, (3 Burr. 1333.)
*133At any rate, he said, the court will send this cause down ^or on ^ °ivil side. It was decided in The People v. Townsend, (1 John. Cas. 104,) that an indictment for perjury; 0nce removed to this court by certiorari, cannot be remitted to the court below for trial; that there is no process known to the law, which will carry it back. That in case of a misdemeanor, it must be tried at bar, or sent down to the circuit. And if the crime be felony, it was formerly doubted whether there was even an election to send it down to the circuit; whether it must not be tried at bar, if tried, in this - court at all. It is a general rule, that if a record once come into the king’s bench, (and the rule is of course the same as to this court,) it cannot be remanded.(a) Had it not been for the statute (1 R. L. 496, s. 7, answering to 6 H. 8, c. 6,) indictments for felonies re: moved here, must always have remained. It is in virtue of that statute that they go down to the oyer and terminer of the proper county. Fazacharly v. Baldo, 1 Salk. 352; 6 Mod. 117, 8, S. C.
But suppose this court have a discretion: under the statute relating to felonies, they have a like discretion. They may, or may not send the cause down to the oyer and terminer. Thus, in Goodwin’s case, (People v. Goodwin, 18 John. 206,) which was manslaughter, the cause came to this court on certiorari; and was sent down to the sittings in this city for trial. Admitting, then, for the sake of argument, that the two cases stand on the same footing, we see that the court will prefer the civil side. It saves their immediate control of the whole case.
*Maxwell, (district attorney,) also examined the question of variance.
’ As to the other questions, he said no motion could be sustained to change the venue, in the proper sense of the word. That must be retained on the record. The only *134power the court possesses as to the place of trial, is, to order a suggestion upon the record, that an impartial trial cannot be had in this city; and direct a trial in some foreign county; or rather, as the cases cited from Burrow say, in the next, or next adjoining county. This is the farthest the cases have gone. Are the court prepared to say, that the case made out on the affidavits, will warrant a suggestion that an impartial trial cannot be had in this city; or if it cannot, that such a trial can be had in an adj oining county ? Three defendants have not felt themselves warranted in making any affidavit. Only one of them has sworn. He certainly shows but a limited state of excitement, at most; and even there, his affidavit is met by one equally strong on the other side. The expression of opinion in the affidavit is nothing, any farther than it is warranted by the particulars. In Rex v. Harris, (3 Burr. 1333,) Ld. Mansfield says, there must be a clear and solid foundation for the suggestion. And vid. New York v. Dawson, 2 John. Cas. 335, 6.
But if the affidavit of the defendant who has sworn, is enough to make out the necessary clear and solid foundation ; what evidence have the court that the same objection does not exist in the adjoining counties ? They, of course have heard as much of the trial, and have read the newspapers mentioned in the affidavits, even with more attention than many of the citizens of New York. In the more scattered and more inquisitive population of the country, we should, I believe, seek with less hope of an unbiassed jury than among the crowded and various population of a great city, though the very theatre of the alleged offence. The population here is more mixed; many are engaged in pursuits which prevent their attention from being particularly occupied with this affair. There cannot be a doubt that a large portion of the community can be found with minds wholly uncommitted, and coming within the strictest idea of impartial jurors, which the court have advanced; or that even the counsel concerned will think of advancing.
At any rate, the experiment should be made here. If it fails, the defendants can then move in August term.
Motion tc try Barker separately, Sc.As to the power of the court to remit the record, if a statute was thought necessary to enable them to send back indictments for felony, it does not allow that One was required in case of misdemeanors. They are a less important class of crime.; and the propriety of their being remitted is more striking. There being :no statute on the subject, therefore; the inference would rather be that the court had the power at common law, By the statute, (1 R. L. 339, s. 15,) the power of the oyer and terminer is general, to hear and determine all crimes and misdemeanors, and deliver the gaols of all prisoners, without exception.
True, there is no writ in the books for carrying the cause back. But the usual practice has be'en, whenever a record is remitted, to enter an order or memorandum in the minutes of the court; and it is then remitted without any farther attention to form. This accounts for there being no writ.
T. J. Oakley, in reply, (after arguing the question of variance.) If the court can now judicially pass on this question, it is at least an additional reason why they should retain a prompt and complete control of the cause, by sending it down on the civil side, even if they have a right to send it to the oyer and terminer. It is a question of evidence, which cannot come up on bill of exceptions, (this being a criminal cause;) and the court will retain their control for the sake of saving the defendant’s rights in their full extent. The court can then grant a new trial for any mistake of the judge, as in a civil cause. (The People v. Crosswell, 1 Caines. 119.)
Barker, in person, moved for a rule that he be tried separately from the other defendants, by a struck jury, at the bar of the supreme court, or at the circuit on the civil side,
*Savage, Ch. J. Mr. Barker, have you given notice of this motion to the district attorney ?
*136Barker. I have not.
Ch. J. This was necessary. Savage,
Maxwell, (district attorney,) being present, consented that the motion should be made without notice.
Barker then read his own affidavit, that the case was rendered complicated by coupling him with others, and with transactions and institutions with which he had no connection; that the circuit judge declared during the first trial, that it was so complicated that the human mind was scarcely capable of comprehending its merits. That he pressed the oyer and terminer for a separate trial; and offered to swear that he did not think that any jury formed in the ordinary way, could be made to understand his case, if he should be tried in connection with the other defendants; but a separate trial was denied. That three defendants, originally included in the same indictment, had been separated before his motion to be tried separately was made; one of whom was afterwards tried and acquitted. That another had furnished papers against the deponent ; and that three of the counsel for the other defendants, made a violent attack on the deponent in summing up.
As a reason for a trial at bar, he urged that the case was one of great difficulty, and which required great examination. As such, it was within the meaning of the statute, (1 R. L. 325, s. 1,) which provides that the trial of such a case at bar may be ordered by this, court.
Savage, Ch. J. The counsel for three of the defendants move that the cause shall be carried down to the circuit for trial, instead of being remitted to the oyer and terminer ; and that the venue be changed. They also request us to instruct the circuit judge on a question of variance between the indictment and evidence, which was raised and passed upon by the court below. That court *held the variance to be immaterial. It is contended that they erred in this, among other things; and in returning to the certiorari, *137which was granted particularly to bring up the question challenge, they have gone on to state the evidence, out of which the motion to instruct arises.
We cannot notice that part of the return which relates to the evidence. The testimony is no part of the record in the court below. It is not, therefore, removable either by writ of error or certiorari. The statute authorizing a bill of exceptions does not extend to criminal cases; and if they were reached by the statute, no bill has been signed-The circumstance that the matter appears on the return, if it be not properly there, will not authorize us to notice it for the purpose of now expressing an opinion upon its merits.
This is, however, one reason why we should listen to the motion for continuing this cause on the civil side. We know enough of the cause to see that several grave questions may arise, which it may be desirable, on the part of the defendants, to have reviewed; but in relation to which, they might be embarrassed, and perhaps entirely defeated, if put to their remedy by certiorari from the court below. Without saying, therefore, whether we have the power to send down a record once removed by certiorari, except upon the statute which relates to felonies,- we grant the motion that this cause be carried down to the circuit.
Shall it go down to the circuit in the city and county of ¡New York ? Changing the venue, speaking technically, is out of the question. The course in criminal prosecutions, where a clear case is made out, is, to order a suggestion upon the record, that a fair and impartial trial cannot be had in the county where the offence is laid. A venire is then awarded to the sheriff of another county, and the cause tried there ; the indictment remaining unaltered as to the venue. What is shown to us as the foundation for such a suggestion? General expressions of belief are made in the affidavits ; but these cannot be regarded on either side. We must look to the facts. These are tokens of public disapprobation at the City Hall, in the course of *the former trials: the number of challenges; publications in newspapers; and an inclination to fix on *138the defendants as the cause of many pecuniary disappointments in the city. But we are by no means prepared to say, from these facts, that an impartial jury cannot be se lected here, especially under the qualifying circumstances of the case. The motion is supported by a single affidavit, made by one of the defendants. Mo disinterested citizen attests to any ground for the suggestion; and two of the defendants who move, have made no affidavit. As to the public expressions, it seems from a counter affidavit, that they were not entirely disapprobatory, but sometimes complimentary, especially towards one of the defendants. Publications in the newspapers have been favorable to both sides. We cannot believe, for a moment, that the inhabitants of this large city have been so much and so extensively excited, as to render a fair and impartial trial impossible or even improbable. The motion for a suggestion is, therefore denied.
Mr. Barker submits, on his own behalf, a motion, having a distinct object. He wishes us to order a trial at bar; and, at any rate, that he be tried separately from the other defendants; and by a struck jury. Granting either branch of his motion, would, in effect, separate him from the other defendants.
We think the indictment must go down to the circuit, as to all the defendants, including Mr. Barker; and upon the ordinary venire. The cause going there, the question of severance must be decided by the judge before whom the trial takes place. It is now the settled doctrine, that, the right of peremptory challenge being out of question, two or more defendants jointly indicted, are to be tried jointly or separately in the discretion of the court. Perhaps we might think, were the cause pending before us for trial, and the case presented as it now appears, that the defendants should be separately tried. The ends of justice may doubtless be materially affected by refusing a separate trial in some cases; and where the discretion confided to the judge is not, in the opinion of the bench, properly exercised, they may perhaps grant a new trial for that reason ; for it is a legal and not an arbitrary discretion. But *139we cannot now decide the point. We do not know how ^acts may aPPear to be at the circuit.
Woodworth, J.There is no doubt of our power, upon a proper case, to send a criminal cause down for trial to a county other than that in which the venue is laid. Crimes, however, are essentially local. Hence the venue, as such, cannot be changed. [1] The place of trial must be altered *139-1by suggestion, and on clear proof that the cause-cannot be tried in the county where the offence is laid, with safety .to the rights of the defendant. The present motion rests on a single affidavit of one of the defendants; and, independent of the opposing affidavit, I cannot say I am satisfied there is any danger in a Mew York jury. . Allow the affidavit its full force, and draw every possible inference from it in favor of this branch of the motion, and I think it insufficient. It can hardly be a question, that out of the large and various population of this city, 12 men can be found with minds in a state of complete neutrality. There is less danger of a partial jury since the decision just pronounced, which excludes every one who has expressed an opinion; and opens the full means of ascertaining the fact, even by an appeal to the juror himself under oath. Besides, as we send the cause down on the civil side, it goes subject to ail the incidents of an ordinary action between party and party, so far forth as reviewing the proceedings before the circuit judge is concerned. Should errors intervene in the selection of a jury, the receipt of proofs, &c., they can be corrected on motion by the party grieved. There is no need of that consent and co-operation on the part of the circuit court, which would be necessary in an inferior tribunal, to warrant the revisal of a matter out of the record.
To decide now whether the evidence supported the indictment, would be to anticipate that it will be the same on the trial yet to take place. The difficulty may be obviated. The question may or may not arise there; and I *do not think it proper that we should examine and pass upon a point so entirely hypothetical, even supposing it to be properly before us on the return.
I concur with the chief justice in his remarks upon Mr. Barker’s motion; and particularly in the suggestion upon the question of severance. We do not consider the case before us, for the purpose of deciding what the judge should do in the exercise of that discretion which he undoubtedly possesses. But I clearly hold, that were I presiding at the trial of a criminal charge against persons *140jointly indicted, but wholly disconnected in the acts througn which they are sought to be convicted; on ascertaining that fact, I should deem it my duty to grant them separate trials. I state this, however, as a general proposition, without saying what this case is. Nor can we anticipate what it will turn out to be at the circuit.
^Attachment tium. iesti^mn Right of the ney'to remove causes by certi-Sutherland, J., not having heard the argument, gave no opinion.
Maxwell, (district attorney,) moved that the defendants enter into the proper recognizances.
He also suggested, that owing to the new direction the cause was about to take, a difficulty might occur in coercing the attendance of witnesses at the circuit, if they should disobey a subpoena. He had been put to the necessity, on ,the former trial, of moving for and obtaining from the oyer and terminer, attachments against a number of unwilling witnesses; but was not aware that the circuit court possessed the power to grant that writ, for the purpose of compelling them to testify.
Sutherland, J. The statute, (sess. 47, ch. 325, s. 3,) authorizes the circuit court to attach witnesses who have disobeyed a subpoena. I have known the power conferred by that statute to be exercised for the purpose of bringing in the witness to testify.
Maxwell. There are other indictments pending at the °Jer and terminer, like those before the court, involving the same questions, and requiring the attendance of the *same witnesses. I submit whether I shall give these the same direction by issuing writs of certiorari, for their removal to this court.
Savage, Oh. J. You must take your own course on that subject. You have a right to remove the other causes or to try them where they are, as you shall think advisa ble.
*141The defendants who had prosecuted the certiorari, then appeared in court, and entered into recognizances; the form or amount of which was not questioned by the district attorney. (b)
He suggested that the sureties should justify
Savage, Oh. Justice, said this would have been required as a matter of course, had it been demanded in season. *But the sureties had gone from the bar, before the motion was made.
other decompelled to appear. How the what sentence to give.Selden.. They aré the samé'sureties who were received without objection, in the dyer and terminer.
Maxwell did not farther press his motion for a justification; but he suggested'that thé'defendants should now plead to the indictment.
Selden. They' pleaded in the court below, ' Their plea stands on the record, which is removedand upon which the cause is to go down.
t Savage, Oh. J. I believe that is sufficient. Strictly, there need not be a new plea.
Woodworth, J. The dispute seems to be‘upon a matter of mere form. Is there any objection tó pléading de novo?
;. Selden. Hot in the least, .
He then pleaded not guilty,, for all the defendants except Barker, who" pleaded for* himself.
'Maxwell. Here are several* other defendants in this indictment, who did not'join'in the certiorari; and who are yet t0 tried. rp^g indictment is here as well in respect to them, as those who have' appeared and given sureties. The defendants who did not join in the writ should also appear, and'enter into recognizance, and put ih pleas.
Savage, Oh. J.. They are not here; and, therefore, cannot. now plead, ór give sureties." If they will not voluntarily appear, you can bring them upon a capias.
Maxwell suggested a difficulty which might arise, under organization of the judiciary, as to the mode of informing this court what sentence they should pass in cage -¡¡he defendants are convicted. The circuits generally *not being holden by any, member of the bench as formerly, how will the court be able to estimate the measure of punishment?
*143The Court intimated that they must have not only the , , , . • .. . < . record and postea, but the cncumstances m evidence must be laid before them, by a case, or in. some other way.
a) 1 Roll. Abr. 534, (G.) pl. 2 id. pl. 3, &c. The King v. Holland, Aleyn, 14. S. C. Styles’ Rep. 84, S. C. id. 94, S. C. Bro. Record, 44, 46. Jurisdiction, 48. Bishop of Bristol v. Proctor, 1 Roll. Rep. 287. Fazacharly v Baldo, 1 Salk, 352; 6 Mod. 177, 8, S. C.
It seems proper here to remark, that the venue may be changed, on motion of the public prosecutor, if it appears that a fair and impartial trial cannot be had in the county where the indictment was found. And this, although there has been no actual experiment made, by way of trying the cause, or even empannelling a jury in the county where the venue is laid. The People v. Webb, 1 Hill, 179. There is no fixed rule defining what shall not be received as proof of the fact that a fair and impartial trial cannot be had. Ib.; see The People v. Bodine, 7 Hill, 147.
In Illinois, a prisoner is entitled to a change of venue whenever, by petition verified by affidavit, he brings himself within the requisitions of the statute; and it is not within the discretion of the court to allow it or not. Clark v. The People, 1 Scam. Rep. 117; see also, McGoon v. little, 2 Gilman, 42. A change of venue may be awarded, in a criminal case, by consent, without requiring a petition or affidavit to be filed for that purpose. People v. Scates, 3 Scam. 351; see Davidson v. Wheeler, 1 Morris, 238. Where an indictment was found in one county of Illinois against several jointly, and the venue was changed to another county, on motion of one of the accused, without consent of the others, when he was tried, and afterwards the indictment was returned to the county where it was found, and the others held to answer, it was held that the proceedings were regular. Hunter v. The People, 1 Scam. 453.
In Indiana, a refusal to change the venue in a criminal case, cannot be assigned for error. Findley v. The State, 5 Blackf. 576; S. P. Spence v. The State, 8 Blackf. 201. An order of court changing the venue of an indictment, is conclusive of its own regularity, unless the contrary appear of record. McCauley v. United States, 1 Morris, 486.
The necessity of changing the venue, in any case, in order to secure an impartial trial, is not to depend upon the suggestion, or even the belief, of the defendant, but upon facts shown to the court, or admitted, sufficient to satisfy the court that the change is necessary to procure an impartial trial The State v. Burris, 4 Harring. 582.
The place of trial cannot be changed in a criminal case for the convenience of witnesses or parties, though it may be where a fair and impartial trial cannot be had in the proper county. People v. Harris, 4 Denio, 150. The practice in the state of New York has been the same since 1830 that it was before that time. Ib. Per Bronson, Ch. J. See Waterman’s Archbold's Cr. Practice and Pleading, vol. 1, p. 75.
It was in this form:
Be it remembered, that on the 31st day of May, A. D., 1827, Jacob Barker, of the city of New York; J. C. and T. F. also of said city, personally appeared in the supreme court of judicature of the people of the state of New York, before the justices thereof; and acknowledged themselves to owe to the people of the state of New York, that is to say, the said Jacob Barker the sum of $10,000; and the said J. 0. and T. F. each the sum of $5,000, of good and lawful money of the state of New York, to be made and levied of their respective goods and chattels, lands and tenements, to the use of the people of the state of New York aforesaid, if the said Jacob Barker shall make default in the condition underwritten.
The conditon of the above recognizance is such, that if the above bounden Jacob Barker shall personally appear before the next circuit court to be holden in and for the city and county of New York, at the city hall of the city of New York, on the third Monday of June next, and from time to time thereafter during the continuance of the said circuit court, as said court shall direct; and also before the justices of the people of the state of New York of the supreme court of judicature of the same people, at the academy, in Utica, in the county of Oneida, on the first Monday of August next, and from time to time thereafter, and at such circuit court thereafter as the said court shall order and direct, to answer, and to do and receive what shall, by the said supreme court, be thenand there required in, of and concerning a certain record of indictment remaining in said supreme court against him, the said Jacob Barker, who was indicted together with George W. Brown, Mark Spencer, Mathew L. Davis, Thomas Vermilyea, Joseph G. Swift, Henry Eckford and William P. Rathbone ; and the said Jacob Barker shall not depart the said supreme court without leave, then the above recognizance to be void; otherwise to be and remain in full force and virtue.
Signed, JACOB BARKER,
J. C.
Taken and acknowledged in open T. F.
court, the 1st day of June, 1827.
Jas. Faelie, Clerk.