State v. Sullivan

The opinion of the court was delivered by

Mr. Justice Pope.

There was a preliminary question raised in this case by the motion of respondent to dismiss the appeal upon the ground that under the laws of this commonwealth regulating appeals in criminal cases, an appeal to this court does not lie against any interlocutory order of the Court of General Sessions, but that such appeal must wait until after final judgment. This court, by its order dated April 24th, 1893, directed that this motion be considered along with the questions involved in the appeal itself, to be heard on the 26th May, 1.893.

The fundamental question presented by the appeal is as to the jurisdiction of the Court of General Sessions for Anderson County to try the defendant for a crime alleged to have been committed in Greenville County, in which latter county the defendant resided; where the homicide occurred; and where a true bill had beeu found in the Court of General Sessions. We will not reproduce the orders of Judges Aldrich and Izlar and the grounds of appeal. They will be set forth in the report of the cause. But, in order that the contention may be manifest, a brief recital of the facts will be made.

J. Mims Sullivan was charged with the murder of Herman G. Gilreath on the 14th day of June, 1892, in the County of Greenville. At the July term, 1892, of the Court of General Sessions for Greenville County, a true bill was found against said Sullivan for such alleged murder. Sullivan gave notice at such term of such court that he would move to change the place of trial to another county upon the ground that he could not obtain a fair and impartial trial in Greenville County; but there was a continuance ordered by Judge Fraser upon the ground of the absence of witnesses material to the defence. At the November term, 1892, of the Court of General Sessions for Greenville County, while Judge Aldrich was presiding, the defendant Sullivan moved to quash the panel of petit jurors summoned to serve at that term upon the ground that Perry D. Gilreath, Esq., as sheriff of Greenville, who was the half brother of the deceased, Herman G. Gilreath, had acted as a member of the board of jury commissioners for that county, and by which board such panel of petit jurors had been selected, and, also, that said Perry D. Gilreath, Esq., as such sheriff, had summoned, or caused to be summoned, every one of such petit jurors for attendance upon the court at that term. Before this motion to quash the panel of jurors was heard by the court, in open court, in answer to the question of the solicitor, the defendant Sullivan, through his counsel, announced that he would insist, at the same time and in the same connection, upon his motion for a change of place of trial to another county.

Testimony was then introduced, and substantiated the foregoing allegations of fact. This testimony was at the time reduced to writing by the official stenographer. Care was taken to inform the court that no reflection upon the high character of the sheriff was.int.ended — all his actings officially were statutory — and, we may add in passing, that such care was observed by all the counsel in this court. At the hearing before Judge Aldrich, it was established by testimony that Perry D. Gilreath, Esq., had just been re-elected sheriff for four years. On the 16th November, 1892, Judge Aldrich made an order, whereby he quashed the panel of petit jurors, and also ordered the record of the cause to be transferred to the Court of General Sessions of Anderson County, a county adjoining Greenville and in same Judicial Circuit, for trial. At the February term, 1893, of the Court of General Sessions for Anderson County, Judge Izlar presiding, the defendant Sullivan objected to the jurisdiction of the Court of General Sessions for Anderson County to-try his cause. The Circuit Judge overruled his objection, and ordered the trial to proceed two days succeeding the date of his order. From this order Sullivan appealed, and having filed the return of his appeal in the office of the clerk of the Supreme Court of this State, an order staying all further proceedings until after the appeal was heard by the Supreme Court was made at chambers by Mr. Justice Pope. In view of the gravity of the charge against the defendant, appellant, this court has determined to waive the further consideration of the preliminary motion of respondent to dismiss the appeal, and pass directly upon the vital issue tendered by the appellant, the alleged want of jurisdiction by the Court of General Sessions of Anderson County to try this defendant.

2 The arguments by counsel on both sides of the controversy were not only very able, but very comprehensive in the attacks upon and the defences of the conclusions of the Circuit Judge. It may be stated, however, that after a very careful consideration of the arguments and the many authorities relied upon for their support, we are satisfied that if this court should be convinced that the decision of the Circuit Judge is in accord with section 2 of article V. of our State Constitution and the act of the General Assembly designed to carry such constitutional provision into practical operation, there will be no necessity to enter'upon the wide field suggested by counsel. Let us, therefore, patiently consider this provision of the Constitution and statute. The section of the Constitution in question is as follows: “It shall be the duty of the General Assembly to pass the necessary laws for the change of venue in all cases, civil and criminal, over which the Circuit Courts have original jurisdiction, upon a proper showing, supported by affidavits, that a fair and impartial trial cannot be had in the county where such trial or prosecution was commenced.” The Statute of the State reads as follows: “The Circuit Courts shall have power to change the venue in all cases, civil and criminal, pending therein, and over which such courts have original and appellate jurisdiction, by ordering the record to be removed for trial to any county adjoining the county in which such action or prosecution was commenced, or to any county in the discretion of the presiding judge: Provided, That the application for removal shall be made to the judge.sitting in regular term by some party interested, supported by affidavits which shall satisfy the judge before whom the application is made that a fair and impartial trial cannot be had in the county where such action or prosecution was commenced: Provided, further, That twenty days notice of such application shall be given to the adverse party.” Gen. Stat., § 2114; 14 Stat., 84, 339.

3 By the “Case” it is established that every requirement of the Constitution and statute in relation to a change of place of trial was met in the cause at bar, unless we should hold that by the use of the word “affidavit” in each, no other mode, of similar effect and solemnity, could be adopted in lieu of “affidavits,” at the hearing of such motion, for the purpose of satisfying the judge that a fair and impartial trial could not be had in Greenville County. It must be borne in mind that both the Constitution and statute contemplated that a change of venue, as it is called, should be obtained on a motion therefor, and that the usual method of submitting motions, where questions of fact are involved, is upon affidavits. What is involved in law by the term affidavit? A statement of fact under oath reduced to writing, certified to by the officer before whom the same is made, and usually, though not necessarily, unless required by statute, signed by the affiant. What is the object aimed at under the Constitution and statute? To satisfy the mind of the judge who hears the motion that a fair and impartial trial could not be had in the eounty where the action or prosecution was begun, and this conviction of the judge must be founded on sioorn statements. In the case at bar, the defendant, appellant, introduced the witnesses in open court; these witnesses were sworn in the presence of the judge, and their statements reduced to writing at the time and place by the official stenographer. We hold this to be a satisfactory compliance with all the requirements on this subject. And, if it were necessary, we would go further and hold that the moving party, the appellant here, should not be allowed to deny this result.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed, and that the cause be remanded to the Court of General Sessions for Anderson County for trial there.