(dissenting).
I respectfully dissent. Let us remember that the Constitution of the United States and of the State of New Mexico seek to protect an accused in a criminal case and not the government. We must not place the guilt or innocence of an accused in a judicial district decided by the discretion of a trial court contrary to law.
On April 18, 1968, in Cause No. 4028, the state filed a criminal information with twenty-eight separate counts in Rio Arriba County against eleven defendants, including Juan Valdez, for events which occurred June 5, 1967.
On change of venue, Valdez was tried and convicted in Bernalillo County, and judgment and sentence filed July 14, 1969. Notice of appeal was filed July 14, 1969.
On November 4, 1970, this court ordered the Clerk of the District Court for the Second Judicial District to prepare and file in this court all exhibits and all pleadings relating to change of venue, in Cause No. 4028, together with a supplemental transcript to contain hearings on motions for change of venue.
Apart from Cause No. 4028, the record includes a criminal information: for kidnapping in Cause No. 4001 filed in Rio Arriba County on April 18, 1968, and a motion for change of venue in that cause filed by the state on May 13, 1968. No motion, written, oral, or amended, for change of vemie by the state from Rio Arriba County of the First Judicial District in Cause No. 4028 appears in the record. Valdez did not file a motion for change of venue.
On September 9, 1968, in Cause No. 4028, a hearing occurred on the issues of change of venue and dismissal. Nine attorneys for defendants and three prosecuting attorneys for the state were present. Prior to the hearing, the trial court said:
* * * I intend to take up whatever motions are pending on change of venue from -ánybody.
The' assistant district attorney said:
■We’Mi'led a Motion for Change of Venue''in everyone of the cases, 4000, 4001, all éxcept in 4028. [Emphasis added.] ■ ' '
The court then said:
' Then d¿"l get it, the Motion you have filed ’ applies to all the cases pending directly.
* * *
The one that is in the court file is dated May .,13, 1968. [This is Cause No. 4001.]
After some discussion over a purported motion by the state for change of venue having been filed June 8, 1967, the court said:
I think the record will show that the Motion, for Change of Venue was originally filed by the District Attorney in Cause No. 3938, which was a hearing before a committing Magistrate. That is what this file is, which later resulted in the filing of an Information.
Any claimed motion, oral or written, for change of venue in Cause No. 3938, a hearing before a magistrate, which later became Cause No. 4028, does not appear in the record.
When the testimony began, Valdez objected to the entire line of testimony; that it was mandatory to try the case in Santa Fe County, if the court found Rio Arriba and Los Alamos Counties not free from exception; that a change of venue to the Second Judicial District was moot by reason of an amended motion for change of venue by'defendants Madril and Velasquez. The defendants, including Valdez, agreed that this constitutional right demanded they be tried in Rio Arriba County.
The trial court granted the state the right to file whatever motions or affidavits it had concerning change of venue. The trial court excluded Bernalillo County unless the state controverted this issue in the record. The state responded, “We have written pleadings, we have done so.” These written pleadings do not appear in the record. This entire proceeding was a hodge-podge of dilly-dally by the stater ■'
Nevertheless, the trial court proceeded' with testimony, made findings of fact and conclusions of law, and entered an order-changing venue from Rio Arriba Couiity in the First Judicial District to Bernalillo County in the Second Judicial District.
This court is bound by the record on appeal. Our duty is to “examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, . .' . ”' Section 21-2-1(17) (1), N.M.S.A.1'953 (Rcpl. Vol. 4). ' " '
Under Article II, Section 14 of the New Mexico State Constitution, the accused shall have “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The word “district” does not mean “judicial district,” but simply means the county over which a court may have jurisdiction. It is a right or privilege that may be waived. State v. Balles, 24 N.M. 16, 172 P. 196 (1918); State v. Holloway, 19 N.M. 528, 146 P. 1066 (1914).
This constitutional provision is supported by § 40A-1-15, N.M.S.A.1953 (Repl.Vol. 6) which provides in part:
All trials of crime shall be had in the county in which they were committed.
However, if an impartial jury cannot be obtained in the county in which the offense was committed, the constitutional guaranty for that county no longer controls. It is even the duty of the state to see that a defendant has a fair trial under all the circumstances. State v. Archer, 32 N.M. 319, 255 P. 396 (1927).
In 1965, the legislature amended the venue statutes, §§ 21-5-3 and 21-5-7, N.M.S. A.1953 (Repl.Vol. 4). These amendments allowed a change of venue from one judicial district to another. A question arises whether these amendments conflict with the New Mexico Constitution and statute mentioned supra. See State v. Holloway, supra. This question I leave for future consideration.
Questions of venue in criminal cases “raise deep issues of public policy in the light of which legislation must be construed. If an enactment of Congress equally permits the underlying spirit of the constitutional concern for trial in the vicinage to be respected rather than to be disrespected, construction should go in the direction of constitutional policy even though not commanded by it.” United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236 (1944).
The question now is: Did the trial court have the power to order a change of venue to a different judicial district contrary to statutory law ? The answer is “no.”
Section 21 — 5—3 (B), supra, reads as follows :
Any party in any civil or criminal case at issue who desires a change of venue from the county in which the case is pending, and who objects to a change of venue to any other county within the same judicial district for any of the grounds stated in subsection A of this section shall move for a change of venue on or before the first day of any regular or special term of court. [Emphasis added.]
It should be noted that the only essential element for the change of venue to a different judicial district is that a party shall move for a change of venue at a specific time.
State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), cert. den. 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 668, held that the trial court cannot order change of venue to an adjoining judicial district when an amended motion was not timely filed, even though evidence was taken, because (1) the amended motion supersedes the original motion, and the amended motion only can be considered; and (2) the evidence cannot change the rule of § 21-5-3(33), supra.
The regular terms of Rio Arriba County in 1968 commenced on the third Monday of June and the first Monday of December. Laws of 1961, ch. 188, § 2, [§ 16-3-12.1, since repealed]. The criminal information was filed April 26, 1968. The state did not move for change of venue from the first judicial district on or before June 17, 1968. The order granting the change was void.
The change of venue provisions are mandatory. Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). Where the statute is violated, the conviction cannot stand. State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951).
Furthermore, § 21-5-4, N.M.S.A.1953 (Repl.Vol. 4) provides:
Upon the filing of a motion for change of venue, the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion. [Empliasis added.]
Where a motion for change of venue is not filed by any party, the trial court does not, under mandatory provisions of a statute, have the inherent power to conduct a hearing and change the venue from one judicial district to another.
The court may require a hearing only “upon the filing of a motion for change of venue.” Section 21-5-4, supra.
To grant this power in the absence of a motion filed, would deprive the accused of his constitutional right to a speedy, public trial by an impartial jury in the county in which the offense is alleged to have been committed. I believe this principle is strongly indicated in our judicial history. In State v. Holloway, supra, the court said:
In all that we have had to say upon this subject we desire to be understood as holding that where a trial by an impartial jury can be secured in the county where the crime is committed, the accused can not be deprived of a trial there, even under the sanction of our legislation upon the subject of change of venue. This is necessarily so under our legislation as to the right to “a speedy public trial by an impartial jury of the county”, if one be obtainable. [Prior emphasis added.]
In the absence of a motion filed for change of venue, the trial court must call the case for trial in Rio Arriba County to determine whether Valdez can obtain an impartial jury. If he can, then the trial court does not have the power to change the venue by prior hearing, or otherwise. Under the above circumstances, Valdez cannot be tried in another county without his consent and no act of the legislature can deprive him of that right.
In State v. Lindsey, 81 N.M. 173, 464 P. 2d 903 (Ct.App.1969), there is a discussion of the right to raise the issue of change of venue at a date following that provided by statutory provisions when it is the only manner available under the circumstances.
For example, if, during interrogation of jurors, it was clear that Valdez or the state could not obtain an impartial jury, an. oral or written motion for a change of venue could then be made. It would be the only manner available under the circumstances. Even if this exception were applicable here, the record does not show that the state could not have made a motion prior to June 17, 1968, nor does it. show that the hearing on September 9, 1968, was the only manner available under- the. circumstances in which to move for change of venue from one judicial district to another.
The majority opinion relies upon the fact that New Mexico adopted the common law. “This rule does not obtain, however, when the subject matter of any procedural right is fully covered by statute or rule.” Sellman v. Haddock, 62 N.M. 391, 310 P.2d 1045 (1957). To my mind, the statutes related to change of venue abrogated any common law rule of inherent power in the trial court to change venue directly contrary to the language of the statutes. Southern Union Gas Company v. City of Artesia, 81 N.M. 654, 472 P.2d 368 (1970). For a case which distinguishes Crocker v. Justices of Superior Court, 208 Mass. 162, 94 N.E. 369, 21 Ann.Cas. 1061 (1911), see State ex rel. Fox v. LaPorte Circuit Court, 236 Ind. 69, 138 N.E.2d 875 (1956).
In criminal cases, the state cannot piddle around for change of venue from county to county or judicial district to judicial district. “Venue is important as a guaranty of the defendant’s right to be tried in the vicinity of his criminal activity, and venue requirements are imposed to prevent the government from choosing a favorable tribunal or one which may be unduly inconvenient for the defendant.” United States v. Rivera, 388 F.2d 545 (2nd Cir. 1968), cert. den. 392 U.S. 937, 88 S.Ct. 2308, 20 L.Ed.2d 1396. “* * * [I] t is the public policy of this Country that one must not arbitrarily be sent, without his consent, into a strange locality to defend himself against the powerful prosecutorial resources of the Government.” Dupoint v. United States, 388 F.2d 39 (5th Cir. 1967).
It is a sad commentary that more than three years have passed since Valdez was charged with a criminal offense; that twenty-two months were wasted to perfect the appeal; that motions for change of venue and controverted pleadings were not filed of record; that timeliness, form and substance were absent. This may be charged to the circumstances surrounding an information filed by the state with eleven defendants, twenty-eight separate counts against individuals and groups, sixty-seven listed witnesses, disqualification of district judges, and filed nine months after the alleged offenses were committed. Experience teaches that confusion, error and injustice can arise as easily as the crow flies and as free as the wind.
The conviction and sentence should be reversed. Valdez should be granted a new trial in Rio Arriba County.