State ex rel. Red Cab, Inc. v. Shelby Circuit Court

Dissenting Opinion.

Arterburn, C. J.

— Following a trial which ended in a “hung jury” in Shelby County, the relator asked for a change of venue because of publicity that was generated by the trial and other surrounding circumstances. The relator had previously been granted one change of venue prior to the trial. The application for the second change of venue alleged the impossibility of a fair trial in Shelby County because of unfavorable publicity and prejudice that existed generally throughout the county. The facts as to the prejudice and publicity were uncontradicted. The trial *133court denied the second application for a change of venue.

Under the Constitution a party has a right to a trial by jury which “shall remain inviolate.” This includes a fair and impartial jury, and no statute, in my opinion, can infringe upon the right of a party to have a fair and impartial jury by limiting the change of venue to one application where the facts are undisputed that an impartial jury cannot be obtained in the county. Were the facts in dispute here as to the prejudice, the determination of the trial court in the absence of any abuse of discretion would be final. Here, however, proof of existing prejudice in the county of venue goes undenied and is not in dispute. We ask: What can a trial court do where the facts are undisputed that a party cannot obtain a fair trial in such county? We have answered that question previously when we stated:

“When all the parties, including the State, agree and the court finds that it will be impossible to procure an impartial jury to fairly try a cause in the_ county of present venue, and When under such circumstances a verdict of guilty, if returned, could not be sustained on appeal because of the admission of error on the part of the state, it would be nonsensical for the law to say to the parties and the court, nevertheless you cannot transfer the trial to another county to avoid such error. Faced by such a predicament it becomes the duty of the judiciary to provide to every accused a public trial by an impartial jury, even though to do so the court must grant a second change of venue and thus contravene the general legislative policy of granting only one change of venue from the county.” State ex rel. Gannon etc. v. Porter Cir. Ct. et al. (1959), 239 Ind. 637, 642, 159 N. E. 2d 713, 715.

We recognize that in the above case both parties to the case agreed that it was impossible to secure a *134fair trial in the county. It appears to us the situation is no different where the facts are undisputed that the parties cannot obtain a fair trial because of prejudice in the county. Faced with such a predicament, a court of general jurisdiction is not powerless to grant a fair trial. The Constitution is above any statutory enactment preventing a fair trial, and a statute which limits a change of venue to one application where it is impossible to obtain a fair trial and impartial jury, is unconstitutional to that extent. Crocker v. Justices of the Superior Court (1911), 208 Mass. 162, 94 N. E. 369; Willoughby v. Railroad Co. (1896), 46 S. C. 317, 24 S. E. 308; Shipley v. Pedmanente Hospital (1954), 127 Cal. App. 2d 417, 274 P. 2d 53, 48 A. L. R. 2d 964.

We have said:

“ . . . The trial court may not refuse to consider and weigh competent, uncontradicted evidence.” Egbert v. Egbert (1948), 226 Ind. 346, 352, 80 N. E. 2d 104, 107; Wasy v. State (1956), 236 Ind. 215, 138 N. E. 2d 1.

The relator seeks this second change of venue, not as a matter of statutory right, but as a matter of constitutional right.

I think the writ of mandate should be granted in this case.

Note. — Reported in 183 N. E. 2d 336.