Concurring Opinion
Achor, C. J.I concur in the majority opinion. Without regard to the character or extent of the right to change of venue (from the county) as it existed under the common law, in my opinion the Constitution of Indiana as adopted in 1851 (and which became effective in 1852) clearly, fully and finally declared the law on the subject of venue as it existed on that date. Article 1, §13 of the Constitution of Indiana provides as follows: “In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; ...” (Our italics.)
In my opinion, if a greater right to a change of venue existed previously under the common law, that right *85was terminated by the above constitutional declaration which completely covered the field as to the venue of criminal actions. Therefore, the present right to change of venue (from the county) exists solely by virtue of statutes subsequently enacted, unless such right exists by reason of other provisions found in the Constitution of Indiana or the Constitution of the United States.
Clearly the right to a second subsequent change of venue does not exist by virtue of the statute. It specifically limits the right to one change, which the appellee had previously taken. §9-1305, Burns’ 1956 Repl. (Acts 1905, ch. 169, §207, p. 584.)
The question with which we are now confronted is, do the provisions of the Constitution of Indiana or the Constitution of the United States grant a right of change of venue in the event it is judicially determined that an accused cannot have a fair and impartial trial in the county of the venue because of the odium or prejudice which exists in that county as to the accused?
The “due process” clause of the Constitution of the United States (Amend. 14, §1) and our own Constitution (Art. 1, §13) guarantees the right to trial by an impartial jury. This right has repeatedly been affirmed by the court. See Foreman v. State (1932), 203 Ind. 324, 180 N. E. 291; Hicks v. State (1927), 199 Ind. 401, 156 N. E. 548. However, it is significant that the above provision in the Constitution of Indiana guarantees only “an impartial jury, in the county in which the offense shall have been committed.” Although it also guarantees the right to a “public trial,” it does not guarantee that the public shall also be impartial or that an adverse odium or prejudice shall not attach to the accused in the minds of the general public of the county. Notwithstanding the fact that the trial court sustained the motion for change of venue because of such “odium and prejudice” in the county, we must *86assume that in LaPorte County, which has a population of approximately 100,000, a jury of 12 people who were without prejudice could have been found, before whom to try this cause.
Here no attempt was made to determine whether or not an “impartial jury” could be found before whom to try the cause. Therefore, there was no breach of the accused’s right to trial by an “impartial jury” within the guarantee of either the State or Federal Constitution. In the absence of such an attempt the action of the court, in direct violation of the statute, constituted an abuse of discretion.
Arterburn, J., concurs in this opinion.