stating that, although a defendant may waive the right to be tried in the county where the crime was committed in order to secure a fair and impartial trial, these "constitutional guarantees are for the protection of the accused; they do not secure any rights to the state"
How later courts described this case
- stating that, although a defendant may waive the right to be tried in the county where the crime was committed in order to secure a fair and impartial trial, these "constitutional guarantees are for the protection of the accused; they do not secure any rights to the state"
- noting that right to "public trial by an impartial jury" expressly guaranteed by Article I, section 11, includes right to fair and impartial trial
- Courts have “inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial” and should exercise that power “whenever public or private interests require” it. (Emphasis added.)
- under Article I, section 11, accused person “entitled to move for and obtain a change of venue whenever it appears to the satisfaction of the court that a fair and impartial trial cannot be had in the county where the crime was committed”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State Ex Rel. Maizels v. Juba, 254 Or. 323 (1969)
198 Or 413, 430 , 255 P2d 1055 (1953), overruled in part on other grounds by State ex rel Maizels v. Juba, 254 Or 323, 327 , 460 P2d 850
The opinion
LATOURETTE, C. J.,
specially concurring.
I specially concur with the majority and take issue with the dissenting opinion as follows:
It is stated therein that:
“ ‘ * * # Judge Biggs has not refused to exercise his judicial function. He has merely (according to the court’s decision) determined erroneously a question of the validity of a statute, following the precedent established by this court in State v. Swanson, 119 Or 522 , 250 P 216 .
i ( * # * # *
“* * * The purpose of the writ of mandamus now issued is not to ‘compel the performance of an act which the law specially enjoins. ’ § 11-302, OCLA. That act was a judicial determination of the legal question presented by the motion for a change of venue in the criminal case, and it has already been performed. The defendant necessarily held that the statute is constitutional and that was as much an exercise of the judicial function as a decision of this court holding the statute unconstitutional. The court now would control the defendant’s judicial discretion by telling him he should have determined that question in the same way that this court determines it. This we could properly do were the ease here on appeal. We have no right to do it by mandamus.”
It is true that defendant inferentially held the statute in question constitutional; however, the true basis of his holding is contained in his language as follows:
“ ‘# * * this Court does not have jurisdiction *436 and authority to change the place of trial to another County in a cause involving a misdemeanor.’.”
No judicial authority is cited to sustain the language quoted from the dissenting opinion. On the other hand, the authorities are contra. For instance, in State ex rel. Sullivan v. Tazwell, 128 Or 326, 332 , 262 P 220 , it is stated that:
“There is no doubt that the Circuit Court for Multnomah County has inherent power to hear the case of relator versus Luckenbach Steamship Company. That court has refused to hear that case. He has refused because he disclaims jurisdiction over the person of the defendant in that case. The law seems to be well settled that where a court declines jurisdiction by a mistake of law mandamus will lie to compel him to proceed to hear and determine the case: Merrill on Mandamus, §§ 203-205, 207; 38 C.J. 610; Zachary v. Polk County Court, 74 Or. 58, 62-64 ( 144 Pac. 1182 ); In re Grossmayer, 177 U. S. 48 ( 44 L. Ed. 665 , 20 Sup. Ct. Rep. 535); In re Connaway, 178 U. S. 421, 425 ( 44 L. Ed. 665, 1134 , 20 Sup. S[C]t. Rep. 951); In re Hohorst, 150 U. S. 653, 663, 664 ( 37 L. Ed. 1211 , 14 Sup. Ct. Rep. 221); Hill v. Morgan, 9 Idaho 718 ( 76 Pac. 323 ).”
Another case is State ex rel. Pardee v. Latourette, 168 Or 584 , 125 P2d 750 . It was my experience, while sitting as circuit judge, to have been mandamused in the above case. There, I held that the circuit court had jurisdiction over one Pardee, a nonresident driver of an automobile involved in an accident, where service of complaint and summons was made on the secretary of state pursuant to what I though was the law in such cases made and provided. In an original mandamus-case filed in this court, it was held that the court over which I presided had no jurisdiction over the defendant Pardee, and an alternative writ was issued com *437 manding me to vacate the order that I had theretofore entered assuming jurisdiction. It is interesting to note that the writer of the dissenting opinion joined in the opinion of the court in that case.
It is apparent from the above cases that it is the settled law in this state that no discretion is involved when a court is called on to decide whether or not it has jurisdiction.