Opinion
Decided January 7, 1928.
Criminal law — Change of venue — Trial to be conducted in county of indictment, when — Motion to be granted if impartial jury cannot be impaneled — Change of venue largely discretionary with trial court — Abuse of discretion to be clearly shown — Intoxicating liquors — Section 6212-13 et seq., General Code — Indictment for third offense sufficient, when — Unnecessary to allege affidavit for second violation charged second offense — Defendant to be tried to jury — Jurisdiction of former offense cannot be challenged after pleading guilty — Record of previous conviction admissible in evidence — Former conviction cannot be collaterally attacked in trial for third offense.
1. Unless it be shown that a fair and impartial trial cannot be had in the county where an indictment originates, a criminal case must be tried there.
2. One accused of crime has right to fair and impartial trial, and, if impartial jury cannot be impaneled in county in which indictment was found, trial court must grant motion for change of venue.
3. Whether or not an order granting change of venue in criminal case should be made rests largely within the sound discretion of the trial court.
4. Appellate court should not disturb trial court's ruling on motion for change of venue in criminal case unless it be clearly shown that trial court has abused its discretion.
5. Denying change of venue for local prejudice of trial for transporting intoxicating liquor in violation of Crabbe Act (Sections 6212-13 to 6212-20, General Code), held not abuse of discretion, notwithstanding that affidavits filed in support of motion alleged that defendant had been criticized and denounced for activities in circulating petitions calling for removal of certain county officials from office and upon occasions of previous arrests on various criminal charges.
6. Indictment charging that defendant had twice been convicted of offenses under Crabbe Act, and charging third offense, held good as indictment for third offense under Section 13435, General Code, notwithstanding it failed to show that affidavit before mayor on occasion of second violation of the act did not charge a second offense, and contention that defendant could not be charged with third offense until he had been charged with and convicted of a second offense.
7. Defendant charged with third offense under Crabbe Act, is charged with a felony, and, under the Constitution, trial must be by jury.
8. Defendant who pleaded guilty before mayor under Crabbe Act, without questioning mayor's jurisdiction cannot, when on subsequent trial for third offense, question his jurisdiction on the former case, and hence records of mayor's court showing the previous conviction were admissible in evidence.
9. Defendant, on trial for third offense under Crabbe Act, cannot collaterally attack prior conviction before mayor's court of a second violation of the act.
ERROR: Court of Appeals for Logan county.
Mr. Roy Warren Roof and Messrs Hale McGee, for plaintiff in error.
Mr. Elmer L. Godwin, for defendant in error.
At the January term, 1926, of the court of common pleas of Logan county, plaintiff in error was indicted for transporting intoxicating liquor contrary to and in violation of the Crabbe Act (Sections 6212-13 to 6212-20, General Code). The indictment, in part, reads as follows:
"That Felix Hawkins late of said county, on the 18th day of February, in the year of our Lord one thousand nine hundred and twenty-six in said county of Logan, and state of Ohio, did then and there transport intoxicating liquor; that the transporting of intoxicating liquor as aforesaid by the said Felix Hawkins, was then and there prohibited and unlawful and contrary to Section (3) 6212-15 of the General Code of Ohio. The grand jury upon their oaths do find and present that the said Felix Hawkins theretofore, to wit, on the 22d day of September, 1925, in the court of common pleas of Logan county, Ohio, plead guilty to a charge of unlawfully possessing intoxicating liquor on the 5th day of May, 1925, in violation of the laws of Ohio, viz. Section (3) 6212-15 of the General Code of Ohio, and was adjudged to pay a fine of $200.00 and costs and that in said matter there has been a final adjudication.
"The grand jury upon their oaths do find and present that the said Felix Hawkins a second time theretofore, to wit, on the 20th day of November, 1925, in the mayor's court of the city of Kenton, Hardin county, Ohio, plead `guilty' to a charge of unlawfully possessing intoxicating liquor on the 17th day of November, 1925, in violation of the laws of Ohio, viz. Section (3) 6212-15 of the General Code of Ohio, and was adjudged to pay a fine of $200.00 and costs and that in said matter there has been a final adjudication and that the offense charged as committed on the 17th day of November, 1925, in the mayor's court of the city of Kenton, Hardin county, Ohio, was a second offense under an act known as the Crabbe Law, 108, part 2, Ohio Laws, page 1182, embraced within and including Sections 6212-13 to 6212-20 of the General Code of Ohio.
"The grand jury upon their oath do find and present that the offense herein charged as being committed on the 18th day of February, A.D. 1926, by the said Felix Hawkins in the county of Logan and state of Ohio, as aforesaid, is a third offense committed by the said Felix Hawkins under an act known as the Crabbe Law, 108, part 2, Ohio Laws, page 1182, embraced within and including Sections 6212-13 to 6212-20 of the General Code of Ohio.
To this indictment plaintiff in error entered a plea of not guilty.
The issue thus made was tried to a jury which returned into court a verdict finding the plaintiff in error guilty as charged in the indictment. A motion for a new trial was overruled, and the plaintiff in error sentenced to imprisonment in the penitentiary, and to pay the costs of prosecution. The reversal of the judgment of conviction is the object of this proceeding.
The errors assigned upon the record as grounds for reversal of the judgment present the following questions for our determination:
(1) Did the trial court err in refusing to order a change of venue?
(2) Did the indictment charge a third offense?
(3) Did the trial court err in admitting in evidence, over the objections of plaintiff in error, the records of the mayor's court?
We will consider these assignments of error in the order named.
1. Prior to the trial, the plaintiff in error, by motion represented to the trial court that he could not have a fair and impartial trial in Logan county. A number of affidavits were filed in support of the motion. The state of Ohio did not controvert the facts set forth in said affidavits. The motion was heard and overruled.
During the impaneling of the jury, five veniremen were excused for cause upon their statements that they had such fixed opinions regarding the guilt or innocence of the plaintiff in error as would require evidence to remove them.
After the jury was impaneled and sworn, plaintiff in error renewed his motion for a change of venue, which was again overruled by the trial court.
The affidavits, filed in support of that motion, disclose, in substance, that in 1925 the plaintiff in error obtained the signatures of a number of citizens of Logan county to a petition requesting a special grand jury investigation of the shooting of an insane citizen of Logan county by an official of that county; that plaintiff in error circulated petitions in Logan county which called for the removal from office of certain officials of said county; that his said activities caused some of the people of Logan county to praise him and others to denounce him; that, since circulating said petitions, he has been arrested in Logan county on various criminal charges; that the newspapers of Logan county have published accounts of his arrests; that some of said accounts are very unfavorable to him; and that, by reason of his said activities, his various arrests for crime, and the accounts of same in the newspapers, a large number of citizens of Logan county are prejudiced against him to such an extent that in the opinion of affiants it will be impossible for him to have a fair and impartial trial in the case at bar in Logan county.
Section 13636, General Code, provides:
"Criminal cases shall be tried in the county where the offense was committed. If it appears to the court thereof, by affidavits, that a fair and impartial trial cannot be had therein, such court shall order that the accused be tried in an adjoining county."
It is very apparent from a mere casual reading of this statute that a criminal case must be tried in the county in which the indictment originates unless it be shown that a fair and impartial trial cannot be had there. One accused of crime has a right to be tried by a fair and impartial jury; and if, for any reason, such a jury cannot be impaneled in the county in which the indictment was found, the trial court of such county must order the case transferred for trial to an adjoining county. But the question whether such an order should or should not be made always rests largely within the sound discretion of the trial judge, and a reviewing court should not disturb his ruling thereon unless it be clearly shown that he has abused that discretion. Baxter v. State, 91 Ohio St. 167, 169, 110 N.E. 456.
We have carefully considered the affidavits filed in support of this motion. The opinions set forth therein are of no aid to us in solving the question here. Only such facts and circumstances as tend to prove or disprove the contention of plaintiff in error are helpful.
To comment at length on the facts set forth in the affidavits will serve no useful purpose. Suffice to say, the criticism and denouncement of plaintiff in error for his activities in circulating the petitions, and his lawlessness, were but natural and to be expected. A person who commits crimes cannot expect good people to speak kindly of him or praise his wrongful and unlawful acts; and one who endeavors to have an officer removed from office or indicted by a grand jury may expect to be censured by the officer and his supporters for so doing. But it does not necessarily follow that one so criticized and denounced, even if by a large number of the citizens of the county, may not, if placed on trial for a crime, have a fair and impartial trial in the county where such criticism and denouncement occur.
In the instant case a jury was in fact duly impaneled and sworn. The fact that five veniremen had opinions as to the guilt or innocence of the plaintiff in error is of no moment. Seldom is a jury impaneled in any criminal case without first excusing one or more veniremen for fixed opinions as to the merits of the case. And, in passing, it is worth while to note that nowhere in the record does it appear that any prejudice existed in Logan county against plaintiff in error by reason of his alleged commission of the crime at bar.
In our opinion the trial court was warranted in overruling the motion for a change of venue. We therefore hold that this assignment of error is not well taken.
2. Counsel for plaintiff in error contend that the indictment did not charge a third offense under the Crabbe Act, for the reason that it failed to show that a second offense was charged in the affidavit before the mayor as a second offense. They maintain that plaintiff in error could not be charged with a third violation of this act until he had been charged with and convicted of a second offense thereunder; that an offense under the act is to be regarded as a first offense unless the complaint upon which the prosecution is based otherwise states; that it did not affirmatively appear in the indictment that the offense to which the plaintiff in error pleaded guilty was charged as a second offense; and that therefore said offense must be regarded only as a first offense, and that, too, notwithstanding the fact plaintiff in error had on September 22, 1925, before the court of common pleas of Logan county, pleaded guilty to the unlawful possession of intoxicating liquor. With this contention, we are not in accord.
Section 6212-15, General Code, in part, provides:
"No person shall, after the passage of this act, * * * transport, * * * intoxicating liquors * * * except as authorized in this act."
Section 6212-17, General Code, so far as applicable here, provides:
"Except as herein provided, any person who violates the provisions of this act * * * for a first offense shall be fined not less than one hundred dollars nor more than one thousand dollars; for a second offense he shall be fined not less than three hundred dollars nor more than two thousand dollars; for a third and each subsequent offense, he shall be fined not less than five hundred dollars nor more [than] two thousand dollars and be imprisoned in the state penitentiary not less than one year nor more than five years."
These sections, in order to carry out the provisions of the act, must be liberally construed. Section 6212-13, General Code. And, as we interpret them, they clearly provide for the prosecution, as for a felony, of any person who, prior to an alleged third violation, had been twice charged with and convicted of offenses under the act.
Section 13435 of the General Code provides:
"In such prosecutions, where a different punishment is provided for a second or subsequent offense, the information or affidavit upon which the prosecution is based, must charge that it is the second or subsequent offense or the punishment shall be as for the first offense."
According to the indictment, plaintiff in error had offended against the act three times — first on May 5, 1925; second on November 17, 1925; and third on February 18, 1926. Obviously the indictment charged a third offense under the act. Plaintiff in error therefore was charged with a felony, and, under the Constitution, he was not only entitled to be, but, if placed on trial, had to be, tried by a jury.
This assignment of error we therefore find to be not well taken.
3. Did the trial court err in admitting in evidence, over the objection of plaintiff in error, the records of the mayor's court?
Counsel for plaintiff in error maintain that the judgment of the mayor's court in the case of State v. Felix Hawkins is a nullity, for the reason that said mayor did not have jurisdiction over the subject matter, and that therefore the court below erred in admitting in evidence, over their objection, said records.
This contention, as we view it, is not tenable for the following reasons:
First. The mayor had final jurisdiction in the case. Section 4536, General Code; Section 6212-18, General Code.
Second. Plaintiff in error pleaded guilty and did not question the mayor's jurisdiction over his person.
Third. The judgment rendered by the mayor's court cannot be collaterally attacked. State ex rel. v. Le Blond, 108 Ohio St. 126, 127, 140 N.E. 510; McCurdy v. Baughman, 43 Ohio St. 78, 1 N.E. 93.
The other assignments of error have been carefully considered by us. The trial court's rulings, on the admission and rejection of evidence, are free from prejudicial error; the claimed entrapment of plaintiff in error by the officials of Logan county is not borne out by the evidence; the charge, taken as a whole, is correct; and the verdict is abundantly sustained by the evidence.
Entertaining these views, it follows that the judgment of the court below should be affirmed.
Judgment affirmed.
CROW and HUGHES, JJ., concur.