Martin v. State

Cole, J.

The only question raised by the writ of certiorari and discussed by counsel is, whether the defendant, who obtained a change of veiiue from Racine county to Walworth county because a fair and impartial trial could not be had in the county where the offense was committed, is entitled to another change on account of the prejudice of the judge of the court where the cause is pending. This depends upon the construction and meaning of the provisions of ch. 178, R. S., regulating the change of venue in criminal cases.

The first section of this chapter in substance enacts, that all criminal cases shall be tried in the county where the offense was committed, except where otherwise provided by law, unless it shall appear to the satisfaction of the court, by affidavit, that a fair and impartial trial cannot be had in such county: in which case the court before whom the cause is pending, if the offense charged in the indictment be punishable by imprisonment in the state prison, may direct the person accused to be tried in some adjoining county, were a fair and impartial trial can be had; “ hut the party accused shall he entitled to a change of venue hut once and no more.'’’

The second section declares that any defendant in an indictment found may apply for a change of venue on account of the *297 prejudice oí the judge of the court where such indictment is found, in the manner provided by law for a change of venue in civil actions, and it shall be the duty of the judge or court to which such application is made, to award such change of venue: “provided, that not more than one change of venue shall be awarded in any cause."

It seems to us that the language used in each section indicates in the clearest manner an intention' on the part of the legislature to give the defendant only one change of venue in a criminal cause. The statute does not give him the right to one change for the reason that a fair and impartial trial cannot be had in the county where the offense was committed, and then another change for the prejudice of the judge. Any such construction would do great violence to the language used in each section, which plainly limits the right of the accused to a single change. It will be noticed that in the first section it is provided that the accused shall be entitled to a change of venue but once and no more ; while in the second section, as if through abundant caution, the restriction is repeated in more comprehensive words, “ that not more than one change of venue shall be awarded in any cause.” We do not well perceive how the intention of the legislature to limit the accused to a single change for any cause could be made more plain and manifest than by the repetition of this restrictive language. But the counsel for the plaintiff in error, as we remember his argument • — ■ for we do not find his brief on file, and, therefore have to trust to our recollection upon this point,— insists that the limitation in each section was only intended to apply to an application for a change for the reason stated in such section; that is, that its object was to limit the right to one change of venue for the prejudice of the people, and one change on account of the prejudice of the judge. But this we deem an inadmissible construction. The language is not that the accused shall be entitled to one change and no more for or on account of the prejudice of the people of the county where the offense *298 was committed, and to one change for or on account of the prejudice of the judge. In order to give the statute this interpretation, words must be interpolated in each section which materially change the sense and meaning of such section. And it is needless to remark that to do this would be exercising a legislative rather than a judicial function. The statute is expressed in clear and precise terms, and the intention of the legislature is very manifest to limit the accused to a single change of venue. As he has already had one change under the first section, he was not entitled to a change of venue under the second, and his application therefor was properly denied.

The writ of certiorari was sued out to bring before this court for correction the ruling of the circuit court in denying the motion for a change of venue. This was the only error or exception alleged upon the record.

By the Court. — The order and decision of the circuit court in denying the application for a change of venue is affirmed, and the cause is remanded for further proceedings according to law.