Kennedy v. State

¶1dissenting. We agree with the opinion of the majority of the court that under the evidence a change of venue should have been granted, but we dissent from the direction given to the case. It is our opinion, taking into'consideration the purposes of the act, that the proper course would be *321to remand the ease with the direction that a new hearing be had, at which opportunity should be given to the solicitor-general to submit proof as to whether the fears of mob violence expressed in the petition were in point of fact reasonable. According to our conception of the act, the legislature intended to provided for two conditions: First, whei;e a defendant is.threatened with mob violence and the judge from a knowledge of the local situation has a reasonable apprehension of mob violence, it is his duty, whether a petition is filed or not, to grant a change of venue. That is to say, if the judge, from information which he has, is of the opinion that such an emergent condition exists that the prisoner will be lynched or suffer other violence, it would be his duty to grant a change of venue without hearing, any evidence. On the other-hand, if his information be of such a character as to be insufficient to create a reasonable apprehension of danger of mob violence against the prisoner, he should fix a time and place for hearing, in order that the prisoner and the prosecution may submit evidence on that subject. The act refers to an interlocutory hearing. A judicial hearing can only be had when both sides to the controversy are given an opportunity to be heard. It is the necessary implication of the act that, when the court determines that a hearing is necessary, both sides should be allowed to submit testimony. In the instant case the court rendered judgment upon an ex parte hearing. That judgment is erroneous. Most probably the court considered the evidence insufficient to show a reasonable apprehension of mob violence, inasmuch as the only proof offered in support of the petition consisted of two affidavits in which the affiants’ asseverations of threats against the prisoner were not specific, but. of the most general character. Such threats were alleged to have been made on the day the prisoner shot his wife. He had been incarcerated in the local jail for twenty days after such threats were made, and during this time no effort was made to carry them into effect. Hnder these circumstances, the ease should be remanded for an immediate hearing, in order that the. judge might gain at such hearing more full and accurate information as to the real state of public sentiment towards the prisoner’s safety in the event that he be brought back to the county for trial.