Dissenting Opinion
Emmert, J.I cannot concur in an opinion which holds a statute can nullify our constitutional guaranty for a fair trial, by prohibiting an accused, charged with murder in the first degree, from having a fair and impartial jury. With equal logic it could be held that the Legislature could nullify every provision of our Bill of Rights. If the Legislature has the constitutional right to prevent courts from affording a fair jury trial, then it has the right to usurp all the functions of courts, give the accused a drum-head trial, make a legislative finding he is guilty, and sentence him to death. Nor can I concur in the holding of the majority that Section 13 of Article I only guarantees an accused a fair trial in the county where the offense was committed. No accused becomes a constitutional outlaw when he takes a change of venue from the county where the indictment was returned.
On February 9, 1953, the Grand Jury of St. Joseph *87County returned an indictment against Robert Lee Johnson charging him with the first degree murder of David R. Smith. From the pleadings here it appears that this was the second indictment returned against the accused, the first indictment having charged him with the same murder committed in the perpetration of a robbery. The venue of this prior cause was changed to the Marshall Circuit Court, where two trials were had, both of which resulted in a disagreement of the jury, after which this first indictment was dismissed prior to the return of the indictment in the cause now under consideration.
On motion of the accused the venue of the cause charged by the second indictment was changed to La-Porte County, where in circuit court he was tried by a jury, the trial lasting over a period of ten weeks, and on December 31, 1953, the jury returned a verdict finding him guilty of murder in the first degree as charged, and fixing his punishment at death.
The petition for the alternative writ here has as an exhibit thereto a certified copy of the various court proceedings, consisting of a transcript of 377 pages. The accused's motion for a new trial was duly filed within time, and alleged some 333 causes for a new trial, which extended through some 204 pages of the transcript. The court held a hearing on this motion for a new trial, and sustained it as to causes 328, 329 and 330, each of which charged misconduct of one of the jurors.
Thereafter the Honorable Jacob A. Fleishbein was appointed special judge in this cause, and before him as special judge, the accused, on October 4, 1955, filed an affidavit for change of venue from LaPorte County, the affidavit charging bias, prejudice and excitement of the citizens of the county against the defendant, and *88that an odium attached to him and his cause of defense on account of local prejudice.
His affidavits contained other allegations charging that widespread publicity in various newspapers and on radio stations caused widespread prejudice against him; that the accused was a Negro but that the decedent, David R. Smith, was white and had many relatives in LaPorte County who were interested in his conviction, and they exerted a great influence over the inhabitants of the county; that after a new trial had been granted, a hearing was had on the petition of Floyd O. Jellison for his attorney fees, which was resisted by the Board of Commissioners of St. Joseph County, which hearing received much publicity, and was presented in a manner to imply the accused was responsible for the trial and costs to be paid by the taxpayers. There had also been an effort made to have the court supplant Mr. Jellison as pauper counsel for the accused after he had represented the accused on the first two trials. Thereafter at various times counsel for the accused filed four (4) supporting affidavits, to which, at various times the State filed six counter affidavits by the Prosecuting Attorneys of the 32nd Judicial Circuit and the 60th Judicial Circuit, and a Deputy Prosecuting Attorney of the latter circuit.
One of the supplemental affidavits of Floyd O. Jelli-son had attached as an exhibit thereto a news account published in a newspaper of substantial general circulation in LaPorte County, reporting that the attorney for the accused had offered to plead him guilty to manslaughter, which offer was rejected by the Prosecuting Attorney of the 60th Judicial Crcuit. No such offer had been made, although the State contended there had been a conversation between counsel for the State and the accused as to a possibility of a plea to a lesser *89offense. The highly prejudicial effect of such a false report is self-evident.
The record which makes this case unique and distinguishes it from any criminal case cited in the majority opinion is that the trial judge did grant the second change. This was a finding that bias and prejudice did exist in LaPorte County. State ex rel. Schaaf v. Rose (1943), 222 Ind. 96, 51 N. E. 2d 856. Nor did the accused seek a second change of venue as a matter of statutory right, but as a matter of constitutional right to a fair trial, and addressed the matter to the sound judicial discretion of the trial court. The uniform rule in Indiana has always been that where a change of venue from the county in a criminal case was a matter for the sound judicial discretion of the trial court, the denial of a change was a determination of an issue of fact and conclusive on review. Conrad v. State (1896) , 144 Ind. 290, 295, 43 N. E. 221; Hauk v. State (1897) , 148 Ind. 238, 243, 46 N. E. 127; Smith v. State (1917), 186 Ind. 252, 260, 115 N. E. 943; Scheerer v. State (1925), 197 Ind. 155, 159, 149 N. E. 892; Kennedy v. State (1935), 209 Ind. 287, 295, 196 N. E. 316; Vehling v. State (1935), 210 Ind. 17, 25, 196 N. E. 107; Sammons v. State (1935), 210 Ind. 40, 43, 199 N. E. 555; Anderson v. State (1941), 218 Ind. 299, 308, 32 N. E. 2d 705; Rogers v. State (1948), 226 Ind. 539, 542, 82 N. E. 2d 89. Although I would not approve of the rule as stated in Conrad v. State (1896), 144 Ind. 290, 297, 43 N. E. 221, supra, this court there said, “The man who presides over a judicial tribunal cannot, and should not, as a judge, exclude from his mind, in the exercise of a purely discretionary matter, depending upon a condition of public sentiment, all knowledge and all impressions coming to him as a man.” It hardly makes for equal justice under law to hold that a denial of a change of venue is conclusive upon conflicting affi*90davits, but if a trial court grants a change upon a showing of cause the Legislature can prohibit the trial court from doing right and justice regardless of bias and prejudice. “The Constitution of this state vests the judicial power in the courts. The judiciary is an independent and equal coordinate branch of the government. Courts were established for the purpose of administering justice judicially, and it has been said that their powers are coequal with their duties. In other words, they have inherent power to do everything that is necessary to carry out the purpose of their creation.” Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 498, 29 N. E. 2d 405, 130 A. L. R. 1427.
There is no doubt that under the common law of England at the time of the American Revolution, the court of Kings Bench did exercise the right to change the venue in felony cases. 13 Maryland L. Rev. p. 347. In Crocker v. Justices of the Superior Court (1911), 208 Mass. 162, 94 N. E. 369, the court, after making an exhaustive review of the cases in England and this country, summarized the common law as follows: “The weight of opinion in those of the older States, whose judicial history is most nearly like our own, supports the view that it is an inherent power of common law courts to order a change for the purpose of securing an impartial trial.” (Page 175.)1
Later in the same opinion the court declared:
“There can be no justice in a trial by jurors inflamed by passion, warped by prejudice, awed by violence, menaced by the virulence of public opinion or manifestly biased by any influences operat*91ing either openly or insiduously to such an extent as to poison the judgment and prevent the freedom of fair action. Justice cannot be assured in a trial where other considerations enter the minds of those who are to decide than the single desire to ascertain and declare the truth according to the law and the evidence. A court of general jurisdiction ought not be left powerless under the law to do within reason all that the conditions of society and human nature permit to provide an unprejudiced panel for a jury trial. Without such a power it might become impossible to do justice either to the general public or to the individual defendant. Our system of government has created the executive, the legislative and the judicial, as three independent and co-ordinate departments, and in strong and comprehensive language has prohibited each from attempting to exercise the functions of either of the others ‘to the end that it may be a government of laws and not of men.’ The courts of general jurisdiction under such a Constitution have the inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial, whenever his life, liberty, property or character is at stake. The possession of such power involves its exercise as a duty whenever public or private interests require.” (Page 179.)
The logic of this reasoning applies with full force to the record in this original action.
Our Bill of Rights commands in general that
“Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” Section 12, Article 1, Ind. Const.
Moreover, when an accused must face a charge of crime, the Forefathers provided more specific protections for every person, by requiring that,
“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; to be heard by himself and coun*92sel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.” Section 13, Article 1, Ind. Const.
“The people of this state have reserved the right in criminal prosecutions to a trial before an impartial jury. Bill of Rights, Art. I, § 13.” Foreman v. State (1932), 203 Ind. 324, 329, 180 N. E. 291. “From such guarantee, it no doubt follows that the accused must be given every reasonable opportunity to procure a fair and impartial jury.” Hicks v. State (1927), 199 Ind. 401, 402, 156 N. E. 548.
The reasoning of the majority opinion that appellant is not entitled to an impartial jury in LaPorte County because he waived the right to be tried in St. Joseph County when he took the change of venue as of right, is impossible to sustain under any constitutional principle. The rights set forth in Section 13 are separate, and a waiver of one does not waive any other. If the majority reasoning is sound, then the appellant lost his right to a public trial in LaPorte County. A star chamber proceeding with no jury would be authorized under such an unreasonable construction.
Nor does the Fourteenth Amendment tolerate a state giving an accused an unfair trial. “A fair trial in a fair tribunal is a basic requirement of due process.” Re Murchison (1955), 349 U. S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942, 946. From the uncontradicted record in this case it is quite apparent that the trial judge thought there had been an “out-of-court” campaign to convict the appellant, which had caused a situation to develop whereby it would be impossible to obtain a fair and impartial jury in LaPorte County. Unless this court is going to make one kind of law for the state, and another for the accused, we have no busines in holding *93the trial judge had no constitutional right and duty to afford the accused due process of law. All that was missing in this record was the threat of mob violence. See Shepherd v. Florida (1951), 341 U. S. 50, 71 S. Ct. 549, 95 L. Ed. 740. But there can be a lynching in the minds of the jurors with just as deadly effect as a lynching in fact. “ ‘Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests, and procedure is not chained to any ancient and artificial formula.’ United States v. Wood, 299 U. S. 123, 145, 57 S. Ct. 177, 185, 81 L. Ed. 78. But, deeply embedded in the right to a fair and impartial trial is the requirement that the jury of twelve men, chosen to sit in judgment, shall have no fixed opinion concerning the guilt or innocence of the one on trial, and that their ultimate verdict shall be based upon the facts as they are submitted to them by the court, under its instructions and superintendence. Anything less is a farce and a travesty upon justice.” Baker v. Hudspeth (1942), 129 F. 2d 779, 782.
If the right to a change of venue from the county is wholly statutory, then the right to a change of judge is merely statutory. Neither the ancient common law nor the late Indiana cases countenance any such construction as that on the right to a change of venue from the judge.
“No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Coke has laid it down that ‘even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself; for jura naturae sunt immutabilia, and they are leges legum.’ ” 2 Cooley, Constitutional Limitations (8th Ed.), p. 870. Lord Coke’s rule was approved by this court in State *94ex rel. Gary Bar Assn. et al. v. Dudak (1955), 234 Ind. 413, 127 N. E. 2d 522, and State ex rel. Parker v. Vosloh, Judge (1944), 222 Ind. 518, 520, 54 N. E. 2d 650.2 See also Tumey v. Ohio (1927), 273 U. S. 510, 47 S. Ct. 437, 71 L. Ed. 749. In the Vosloh case this court squarely held the right to a change of venue from the judge was not wholly statutory. There is no statute giving a change of venue from the judge in the entire administration of an estate. State ex rel. Stockton v. Leopold (1949), 227 Ind. 426, 431, 86 N. E. 2d 530. Yet in the Vosloh case, supra, this court emphatically held the trial judge, who was interested in the administration of an estate pending before him, should grant an affidavit for a change of venue from him for the entire administration of the estate. If Lord Coke’s rule is still the law, a statute prohibiting the change would have been unconstitutional.
Both §9-1305 and §9-1318, Burns’ 1942 Replacement, prohibit an accused from having more than one change of venue from the judge. But suppose it is discovered that the special judge is closely related to the victim, or that he has a financial interest in property involved in the crime charged. If the right to a change of venue is purely statutory, the accused would be absolutely prohibited from taking a second change. But not since Lord Coke’s day has this been the law of the land in any Anglo-Saxon jurisdiction.
Nor is it any answer to the rule of disqualification to argue that this court would not presume a special *95judge would act when in fact he was disqualified. It did happen in State ex rel. Avalon Apartments Company, Inc. v. Sammons (1942), 220 Ind. 319, 38 N. E. 2d 846, 42 N. E. 2d 626. When a judgment comes before this court for a review the presumption is the judgment was had by due process of law and the record is free of error. But this presumption must yield to the record, and if the same case comes before this court more than once, in none is there a conclusive presumption no error was committed. If the Legislature should attempt to enact such a conclusive presumption it would be unconstitutional and void as an attempt by the Legislative Department to exercise judicial functions, as well as a denial of due course of law, and the abolishment of our jurisdiction to review for error.
An examination of the cases relied on by the majority opinion discloses that in none did a trial judge find there was such prejudice and excitement existing in the county that a change of venue from the county should be granted to give the accused his constitutional right to a fair and impartial trial. In many of them no motion for a change of venue was filed.3 Some only involve civil issues.4 In Duggins v. State (1879), 66 Ind. 350, this court held appellant was entitled to a *96special judge even though a judge pro tempore had been succeeded by a newly appointed presiding judge. In Line v. State (1875), 51 Ind. 172, appellant sought a second change of judge as of right without any showing in fact that a special judge was incompetent to afford a fair trial. If the special judge had as a matter of fact found he was incompetent and the state had objected, the case might be some precedent analogous to the issue involved in the matter at bar.
The texts cited in the majority opinion are no more persuasive than the cases on which the texts have been based. In Stamp v. Commonwealth (1928), 200 Ky. 133, 253 S. W. 242, the court held it was no abuse of discretion for the trial judge to refuse a motion for change of venue from the county for the second trial after the cause had been reversed. The statement of the court that the right was statutory is pure dictum and fails to consider the right of an accused to a fair trial under the due process clause and under the Kentucky Constitution. The language in French v. State (1896), 93 Wis. 325, 335, 67 N. W. 706, involves an attempt by the accused to prevent the case from going out of the county. That court also failed to consider the constitutional right to a fair trial before an impartial jury. Roberts Mining & Milling Co. v. Third Judicial District Court (1935), 56 Nev. 299, 50 P. 2d 512, involved the trial of civil issues. The affidavit *97for the change was only general in form, the trial judge did not find as a fact he was disqualified, and the language must be limited to the facts decided. In People ex rel. Wooten v. Blanchard, Justice of the Peace (1921), 70 Colo. 237, 199 Pac. 493, the court only decided the accused did not have a right to more than one change of judge as of right. Nor was there any finding by the trial judge that he was incompetent in State v. Wagner (1925), 311 Mo. 391, 279 S. W. 23.
The Illinois cases furnish no precedent for deciding the facts in the cause at bar. In People v. Touhy (1935), 361 Ill. 332, 346, 197 N. E. 849, the court held the matter of prejudice was a question of fact to be determined by the trial judge, which is what is contended by the accused in this case. In People v. Kelly (1936), 285 Ill. App. 57, 65, 1 N. E. 2d 552, the defendant was not trying to secure an impartial judge but was attempting to prevent a trial before any judge. In People v. Doss (1943), 382 Ill. 307, 46 N. E. 2d 984, a charge of criminal contempt by a newspaper was involved. There had already been two changes of judge and the Supreme Court had appointed a third judge, and there was no evidence that the appointee by the Supreme Court was biased and prejudiced in any way whatever.
The Maryland cases so often cited to sustain inaccurate language by the text writers were decided under the peculiar provision of the Maryland Constitution which was often changed, sometimes granting, sometimes denying a change of venue from the county as of right. Constitutional Limitations on Change of Venue in Criminal Cases, Md. Law Rev. (1953), Vol. 13, p. 344, et seq. In none of the cases did the Court of Appeals of Maryland consider the right of an ac*98cused to be tried where the offense was committed, for by implication the Attorney General was granted the right to a change of venue from the county where the indictment was returned. Price v. State (1849), 8 Md. 295; Fountain v. State (1919), 135 Md. 87, 108 Atl. 473; and Lee v. State (1933), 164 Md. 550, 165 Atl. 614, involve the peculiar constitutional provisions of Maryland. The affidavit in the latter case prayed a change to a county “where there are no Jim Crow or segregation regulations against negroes.” This of itself would be insufficient to show such bias and prejudice, passion and excitement, or that the accused could not have a fair trial in Baltimore County, and the trial judge made no finding that he could not obtain a fair jury in Baltimore County, as is the case at bar.
The fact that the Supreme Court of the United States denied certiorari in Patterson v. State (1937), 302 U. S. 733, 58 S. Ct. 121, 82 L. Ed. 567 (Patterson v. State (1937), 234 Ala. 342, 175 So. 371), has nothing to do with the issues in the matter at bar. Patterson was one of the defendants in the notorious Scottsboro cases. See Powell v. Alabama (1932), 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158. One prosecutrix admitted she lied on the first trial when the defendants were condemned to death. None is now in prison. See “They Shall Be Free” by Allen K. Chalmers. When the Supreme Court denied certiorari it only held that Patterson had not been denied equal protection under the law, and therefore the cause could not be removed to a Federal District Court for trial.5
The modern day facilities for the rapid and complete dissemination of news by the press, radio and television *99have increased the possibilities that it may be difficult to obtain a fair and impartial jury after a cause has once been tried. The General Assembly of Indiana has provided by statute that after a cause has been reversed and remanded a change of venue from the county may be had as of right. Section 2-1432, Burns’ 1946 Replacement (Supp.) [Acts 1947, Ch. 186, §1].6
If the conviction in the LaPorte Circuit Court had been appealed and we had reversed it with an order for a new trial, he would have been entitled to a change of venue from LaPorte County as of right. As far as the substantial rights of the accused are concerned, it could make no difference to him whether our court or the trial court grants his motion for a new trial. When the General Assembly enacted Ch. 186 of the 1947 Acts, it recognized the necessity for affording an accused a fair trial after a reversal, and presumably it took cognizance of today’s rapid dissemination of news when it granted the change as of right. But in the matter at bar we are not dealing with a possibility, but with a conclusive finding that there was such bias, prejudice, passion and excitement, that the accused could not have a fair trial in LaPorte County.
The Forefathers sought to guarantee a fair trial for an accused. If the trier of the facts be a jury, it is just as prejudicial to the rights of the accused if he cannot obtain a fair and impartial jury trial due to the excitement and prejudice against the accused in the county as it would be for the presiding judge to have a personal or financial interest in the outcome of the prosecution. It is beyond the power of the Legislature to say to the courts an accused can have one *100change of venue from a county when prejudice and excitement exists against him, but after the first change is granted, and the accused has been convicted after a long trial which received much publicity and notoriety throughout the county, and an able and experienced trial judge found such prejudice and excitement did then exist, he then is not entitled to an impartial jury in another forum in which he would again be placed on trial for his life.
If the State can prove the accused guilty beyond a reasonable doubt in LaPorte County, it can do so in Porter County on a retrial. The only inconvenience to the State is going a few miles farther to Porter County. It ought not ask, nor should this court countenance a holding that an accused be put on trial for his life in a county where it has been adjudicated of record he cannot have a fair and impartial trial due to the excitement and prejudice against him. I would vacate the writ.
Note. — Reported in 138 N. E. 2d 875.
. See also Matter of Murphy v. Supreme Court (1945), 294 N. Y. 440, 63 N. E. 2d 49; State ex rel. Ricco v. Biggs (1953), 198 Or. 413, 255 P. 2d 1055; State v. Woods (1922), 92 W. Va. 331, 115 S. E. 470; 22 C. J. S. 302, §189.
. In State ex rel. Purcell v. Circuit Court (1950), 228 Ind. 410, 92 N. E. 2d 843, this court held that a judge of a circuit court who was biased and prejudiced against _ the prosecuting attorney acted beyond his jurisdiction in making an ex parte order appointing a special prosecutor to conduct the grand jury investigation of the regularly elected, qualified and acting prosecuting attorney of the circuit.
. McCoy v. Payne (1879), 68 Ind. 327, 336 [action to collect debt from decedent without administration]; Atkinson v. Disher (1917), 177 Ind. 665, 98 N. E. 807 [appeal from order of county commissioners denying twelve (12) liquor licenses]; Southern R. Co. v. Howerton (1914), 182 Ind. 208, 105 N. E. 1025, 106 N. E. 369 [action under federal employees liability act]; Connell v. State ex rel. Thompson (1924), 196 Ind. 421, 144 N. E. 882, 148 N. E. 407 [quo warranto to try title to office of city councilman]; Nealis, Administrator v. Dicks (1880), 72 Ind. 374, 379 [action for fraud in obtaining default judgment] ; Cloud v. Bruce (1878), 61 Ind. 171 [action to quiet title]; Sopher v. State (1907), 169 Ind. 177, 81 N. E. 913 [prosecution for maintaining liquor nuisance] .
. State ex rel. Young v. Niblack (1951), 229 Ind. 509, 99 N. E. 2d 252 [action for declaratory judgment]; Michigan Mutual Life Insurance Company v. Naugle (1891), 130 Ind. 79, 29 N. E. 393 [action on insurance policy]; Millison v. Holmes (1848), 1 *96Ind. 45 [trespass quare clausum fregit]; State ex rel. Mabbitt v. Smith (1876), 55 Ind. 385, 386 [bastardy]; Weakley v. Wolf (1897), 148 Ind. 208, 47 N. E. 466 [election contest]; Daniels, Admx. v. Bruce (1911), 176 Ind. 151, 95 N. E. 569 [action to sell real estate to make assets for the payment of debt]; Stair v. Meissel (1934), 207 Ind. 280, 192 N. E. 453 [action to foreclose chattel mortgage] ; State ex rel. Neal v. Superior Court of Marion County (1931), 202 Ind. 456, 174 N. E. 732 [receivership]; State ex rel. Kealing v. Clay Circuit Court (1934), 207 Ind. 259, 192 N. E. 423 [civil action against city of Brazil].
. See Steele v. Superior Court of California, in and for the City and County of San Francisco (1948), 164 F. 2d 781, Certiorari denied 1948, 333 U. S. 861, 92 L. Ed. 1140, 68 S. Ct. 739.
. Since 1907 the statute has given the right to a change of judge after a reversal. Section 2-1404, Burns’ 1946 Replacement. See also §2-1429, Burns’ 1946 Replacement.