delivered the opinion of the Court:
The plaintiff in error was indicted with three others for the crime of arson. Upon the calling of the cause, he moved the Court for a change of venue. The motion was founded on an affidavit in the usnal form, and assigned for cause, that he could not receive a fair trial in the county in which the cause was pending, because of the prejudice of the minds of the inhabitants of said county against him. One of the other persons included in the same indictment, was arrested, but did not join in the motion for a change of venue. The motion was overruled by the Court. A motion was then made to quash the indictment, which was also overruled, and exceptions taken to the opinion of the Court on both the motions.
The decision of the Court on the first motion was clearly erroneous. The Constitution secures to every person charged with an indictable offence, a trial by jury, and in order that this trial may be a fair and impartial one, the law has given to the accused many privileges, and amongst these the right to a change of venue is in some instances the most important; and when, by petition, verified by affidavit, the accused brings himself within the requisitions of the statute, the obligation of the judge, or court, to allow it, is imperative, and admits of the exercise of no discretion on account of any supposed inconvenience that may result from the exercise of the privilege.
It is argued that if the venue should be changed on the application of one of several defendants indicted jointly, it would be difficult, if not impossible, to try the others, as the indictment would have to be sent to the adjoining county with the accused. It is unnecessary to enquire whether any, or what inconvenience may arise from a change of venue under such circumstances. Whatever it might be, can be avoided by preferring separate indictments against each. This practice I am aware, is unusual, but it is better upon every principle of justice, that it should be adopted, than that the State’s Attorney should, by his own act, be permitted to withhold from a party an important privilege, which has been secured to him by the law, as one of the means of obtaining impartial justice.
The next enquiry is, whether the Court erred in overruling the motion to quash the indictment, and in afterwards rendering judgment upon the verdict of the jury.
The indictment does not allege the value of the building charged to have been burned. This would probably be unnecessary at common law, as a fine formed no part of the punishment for the offence. The statute, however, under which the indictment is found, has changed the common law in this respect; a fine equal in value to the property burned, is imposed as part of the punishment for the offence. The indictment, then, should have charged the value of the property destroyed, otherwise it could not properly have been enquired into by the jury. It would form no part of the issue which they were sworn to try. In this respect, then, the indictment is defective; and the Court erred in overruling the motion to quash it, and in rendering judgment upon the verdict of the jury.
There are other exceptions taken to the sufficiency of the indictment, but it will be unnecessary to notice them, as, for the reasons already assigned, the judgment of the Court below must be reversed, and the prisoner ordered to be discharged.
Judgment reversed, and prisoner discharged.
Note. See Berry v. Wilkinson et. al., decided Dec. term, 1834. Post.
The following act was passed Feb. 28th, 1839:
Sec. 1. Be it enacted Inj the People of the State of Illinois, represented in the General Assembly, That, hereafter, changes of venue shall not be granted after the first term of the court at which the party applying might have been heard, unless the party so applying shall show that the causes for which the change is asked, have arisen, or come to his, her or their knowledge, subsequent to the term at which the application might have been made; and shall also have given to the opposite party ten days’ previous notice of his or their intention to make such application, except in cases where the causes have arisen or come to the knowledge of the party making the application within less than ten days of making the same.
Sec. 2. In civil causes wherein there are two or more plaintiffs or defendants, a change of venue shall not be granted unless the application is made by or with the consent of all the parties, plaintiffs or defendants, as the case may be; and in criminal cases, where this application is made by a part of the defendants, and is ¿ranted, a copy of the indictment, and not the original, shall be transmitted to the court to which the change of venue is ordered; and the copy, certified by the clerk to be correctly made, shall stand as the original.
Sec. 3. All questions concerning the regularity of proceeding in obtaining changes of venue, and the right of the court to which the change is made to try the cause and execute the judgment, shall be considered as waived after trial ancl verdict.