We concur in the opinion and conclusion of the majority of the court, except so far as relates to the action of the court below denying the defendant’s petition for a change of venue. Sections 18 to 33 of chapter 146 of the Revised Statutes relate to changes of venue in criminal cases, and, as has been uniformly held by this and other courts, in respect to other statutes relating to crimes and their punishment, said sections should be construed strictly and literally in favor of the accused. Section 18 provides that, when any defendant in an indictment shall fear that he will not receive a fair and impartial trial in the court in which the case is pending, because the inhabitants of the county are prejudiced against him, the court shall award a change of venue, upon the application of the defendant as provided in the following sections. Section 22 is as follows:
“When the cause for a change of venue is the prejudice of the inhabitants of the county against the defendant, his petition shall set forth the facts on which he founds his belief, and the attorney, on behalf of the people, may deny the facts stated in the petition and support his denial by counter affidavits; and the judge may grant or deny the petition as shall appear to be according to the right of the case.”
The above section was inserted in the revision of 1874 as a new provision, so far as prosecutions for murder are concerned the statute up to that time mating it imperative upon the court in such cases to award a change of venue whenever the defendant merely alleged by his petition that he feared that he would not receive a fair and impartial trial in the county where the indictment was pending on account of the prejudice of the inhabitants of the county.» By said section the right to a change of venue upon the bare statement in the petition is taken away, and the burden is imposed upon the defendant of meeting and maintaining on his part two issues. The first is an issue of law, viz, whether the facts stated in the petition as the basis of his belief are sufficient, if true, to raise a reasonable apprehension that, on account of the' prejudice of the inhabitants of the county, he will not receive a fair and impartial trial, and, second, an issue of fact, viz, whether the facts stated by him in his petition as the foundation of his belief really exist. If either of these issues is decided against him his petition must be denied, but if both are decided in his favor his right, to a change of venue becomes absolute.
It is manifest from the language of the statute that the issue-of fact which the attorney for the people is permitted to raise is not, whether the prejudice which the defendant apprehends exists in reality, but whether the facts stated in the petition and upon which the defendant founds his belief that the inhabitants of the county are prejudiced against him are true. The-defendant is required to state in his petition the facts upon which he founds his belief, and the attorney for the people is. permitted to “deny the facts stated and support his denial by counter affidavits.”
It is clear that the facts stated in the petition for a change of venue in this case were sufficient, if true, to raise in the mind of a reasonable man a well grounded apprehension that,, on account of popular prejudice, the defendant would not receive a fair and impartial trial in Gallatin county, where the indictment was- pending. The homicide charged was committed in Shawneetown, the county seat, principal city and commercial center of that county, and the petition shows, among other things, the publication, shortly after said homi-cide was committed, in at least three different newspapers published in Shawneetown and having a circulation throughout said county, of accounts of the affair, describing the offense in strong and denunciatory language, and stating the facts in such way as to make it appear to be an unprovoked and brutal murder of a white man by a negro. The petition further shows-that after the homicide, the feeling against the defendant in Gallatin county, and particularly in and about Shawneetown was very bitter; that after his arrest, a large and excited mob-of citizens of Gallatin county followed him to the county jail clamoring for his blood and preparing to take him out and lynch him; that to save him from mob violence, the sheriff was compelled to convey him secretly and by night to the jail of another county, and keep him secretly confined until it became necessary to return him to Gallatin county for trial, and that the sheriff and his deputy were compelled to circulate false reports as to the defendant’s whereabouts in order to ward off and defeat the mob violence with which he was threatened ; that on the day of the homicide, one Peter Hite, a negro, made a remark on the streets of Shawneetown justifying the defendant, and that for such remark he was set upon by a mob of forty or fifty persons, and but for the timely interference of the sheriff, would have been killed; that various individuals ■of prominence and influence in said county, whose names were given, had in various public places in said county, and on numerous occasions, stated in the hearing of large numbers of the citizens of the county that the defendant ought to be hung. "These are the more important, though only a part, of the facts •stated in the petition as the foundation of the fear on the part ■of the defendant that he would not receive a fair and impartial trial in said county;
The attorney for the people filed a large number of counter ■affidavits, sworn to by persons living in different parts of Gallatin county, said affidavits being generally to the effect that in the opinion of the affiant and so far as he knew, there was no such prejudice in the minds of the people of said county ¡as would interfere with a fair and impartial trial of the defendant. But very little attempt was made to disprove any of the specific facts set but in the petition. It need not be held that counter affidavits of this character were improper, ■or that they were wholly immaterial upon the hearing of the matter before the court, but it must be admitted that their bearing upon the issue of fact to be tried was very remote. "The issue was not whether the prejudice which the defendant ¡apprehended in fact existed, but whether the facts existed upon which his apprehensions were based. The attempt to disprove those facts was, on the whole, a failure, and as said facts were not disproved they must be deemed to have been true, and if true, the defendant was entitled to a change of venue. But it is claimed that the affidavits, taken as a whole, warranted the conclusion that, while there was prejudice against the defendant in Shawneetown and vicinity, there was little if any in the minds of the inhabitants of the other parts of the county, and that there was a sufficiently large population in the county to draw from to obtain an unprejudiced jury, and that a fair trial in the county was therefore possible. This reasoning is specious and delusive. The trial, if held in Gallatin county must be held at Shawneetown, and therefore in the immediate atmosphere of the prejudice which the defendant feared. But waiving that question, and admitting that the prejudice complained of was wholly confined to Shawneetown and its vicinity, what machinery has the law provided for selecting a jury from one part of the county to the exclusion of the other? The regular panel must be drawn from all parts of the county indiscriminately, and after that panel had been exhausted, as it doubtless soon would be in a trial of this character, what surety was there that the sheriff, in executing special venires, would be disposed to confine his selection to those portions of the county where no prejudice existed, and if he saw fit not to do so, what power would the court have to control his action in that behalf ? The population where the prejudice is shown to have existed was near at hand and that which was impartial remote, and in the ordinary course of things the sheriff would be more likely to find the jurymen to be summoned, among the former than the latter. The fact that a sufficient, number of unprejudiced men were living in the county to form an unprejudiced jury was of little significance, so long as the law provided no certain means of selecting them and avoiding the selection of those who are shown to be prejudiced.
We are of the opinion that, under all the facts shown the venue should have been changed, and that it was error to deny, the defendant’s petition in that behalf.