The opinion
Smith, J., (concurring). I concur in the affirmance of the judgment in this case, for the reason that, in my opinion, the trial judge was Warranted in finding, from the oral examination of the supporting affiants, that they were not sufficiently advised as to the state of public feeling' against appellant to constitute them credible persons within the meaning of the law.
In the case of Hedden v. State, 179 Ark. 1079 , 20 S. W. 2d 119 , it is said: “In order to obtain a change of venue to another county, by one charged with crime in any circuit court in this state, the statutes require that it must be made to appear by petition of the defendant, supported by the affidavits of two credible persons, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against him that he cannot obtain a fair and impartial trial therein. This court has ruled that, in order for an affiant to qualify as a credible person under the statute, he must be cognizant of the prejudice existing throughout .the whole county, and not merely in portions thereof. Dewein v. State, 120 Ark. 302 , 179 S. W. 346 ; Speer v. State, 130 Ark. 457 , 198 S. W. 113 ; Williams v. State, 162 Ark. 285 , 258 S. W. 386 ; Mills v. State, 168 Ark. 1005 , 272 S. W. 671 .”
But I do not concur in the view that the trial judge had the right to find whether appellant could obtain a fair trial in the county where he had been indicted.
The majority quote the excellent rule stated in 27 R. C. L., chapter Venue, § 35, p. 815. The General Assembly might well adopt this rule. Its adoption would prevent an abuse of the constitutional right to a change of venue. By § 10, of art. 2, of the Constitution it is provided that an accused shall be entitled to a change of venue “upon the application of the accused, in such manner as now is, or may be, prescribed by law.” The General Assembly might, therefore, adopt what appears to be the general rule in other. jurisdictions in regard to change of venue in a criminal case, that is, it has the power to do so.
By § 14342, Pope’s Digest, it is provided that “Hereafter the venue of civil actions shall not be changed ■unless the court or judge to whom the application for change of venue is made finds that the same is necessary to obtain a fair and impartial trial of the cause.”
The General Assembly has the power to adopt the same rule in criminal .eases; but the majority opinion renders this legislative action unnecessary if we are to adopt the rule stated in 27 B. C. L., quoted in the majority opinion, and which is apparently approved. But under the law, as it now exists and has been declared to be in many cases, the trial court, in criminal cases, may pass only upon the credibility of the persons who, by affidavit, support the petition for a change of venue.
In the case of Ward v. State, 68 Ark. 466 , 60 S. W. 31 , the trial judge resided in the county where the prosecution was pending, and upon denying the petition for a change of venue stated that “he knew the defendant could get a fair and impartial trial in Lee county, and that he would not permit two persons to come into court and recklessly swear to the contrary.” This was held to be error, the petition being in proper form. In that case the prosecuting* attorney proposed to show that the affiants were not credible persons; but the court denied the petition without hearing this evidence. Had the evidence been heard, and the finding made that the affiants were not credible persons, the motion could and should have been denied upon that finding.
It was said in the case of Strong v. State, 85 Ark. 536 , 109 S. W. 536 , 14 Ann. Cas. 229, that while the credibility of the affiants may be investigated, the truth or falsity of their evidence cannot be inquired into; and in the case of Dewein v. State, 120 Ark. 302 , 179 S. W. 346 , it was said that if the petition was supported by the affidavits of two credible persons an order for a change of venue must be made.
The case last cited defines ‘ ‘ credible persons ’ ’ within -the meaning of our statute, and fully discusses and defines the discretion and duty of trial judges in passing upon petitions for change of venue. The case so fully disposes of the question that I quote from it rather extensively. It was there said:
“In a criminal case, when a petition for a change of venue and the supporting affidavits are in the form prescribed by statute, the only inquiry upon which the trial court may enter is as to the qualifications of the supporting witnesses; and if it be found that they come within the definition of the statute, as ‘ credible persons who are qualified electors, actual-residents of the county and not related to the defendant in any way,’ the court has no further discretion and the order for a change of venue must be made. The court may, however, in order to pass upon the credibility of the supporting witnesses, have them called before the court and examined. That is not the exclusive method of passing upon the question, but is the familiar one more often pursued in this .jurisdiction. The court may inquire into the means of knowledge of the witness and as to the probability of the petitioner being able to obtain a fair and impartial trial, but only for the purpose of reaching a conclusion upon the credibility of the supporting witnesses. . . . It is true that the word ‘reputable’ is laid down by the lexicographers as synonymous with the word ‘credible,’ but the two words are not synonymous in the fullest sense and can not be treated as synonymous when considered in interpreting our statute on the subject of change of venue. A person may be of good repute in the community in which he lives, and yet, by reason of a reckless and inaccurate oath, based upon insufficient knowledge, fail to be a credible person within the meaning of the statute. A credible person is one who has the capacity to testify on a given subject and is worthy of belief; and one who lacks knowledge on the subject under investigation is not a credible person to be accepted as worthy of belief in that particular inquiry. ’ ’
In addition to the Dewein case, supra, the majority opinion cites other cases, all of which are to the same effect, and no case to the contrary was cited. In other words, in passing upon a petition for change of venue, in proper form, the limit of the inquiry which the trial court may make is that of the credibility of the supporting affiants. If they are found not to be credible, the petition may and should be denied; but if they are found to be credible tbe court is without discretion and must make an order changing the venue.
In addition to the cases cited in the majority opinion, all of which support the rule just stated, the opinion in the case of Spurgeon v. State, 160 Ark. 112 , 254 S. W. 376 , cites a number of others. The proper practice in such cases is there again extensively reviewed, and the opinion quotes approvingly from the opinion in the case of Whitehead v. State, 121 Ark. 390 , 181 S. W. 154 , as follows : “In the last case cited above (Whitehead v. State, supra) the court reviews the authorities and states the rule as follows: ‘The trial court exercises a judicial discretion in passing upon the credibility of the affiants, but its discretion is limited to that question. When the petition for change of venue is properly made and supported, the court has no discretion about granting the prayer thereof, whatever the opinion of the court may be as to its truthfulness. The statute provides no method by which the court may determine the credibility of the affiants, but leaves the question to the court. A number of cases, however, have approved the practice of calling the affiants and examining them as to the source and extent of their information for the purpose of ascertaining whether or not they have sworn falsely or recklessly without sufficient information as to'the state of mind of the inhabitants of the county as to the accused. But the cases also hold that the statute on this subject does not contemplate that the truth or falsity of the affidavits shall be inquired into, and that the only question for the determination of the court is whether or not the affiants are credible persons, and that all inquiry must be confined to that question.’ ”
Scores of eases, all to the same effect, are cited in West’s Digest of the Arkansas Reports, chapter Yenue, §§ 115 to 145, and it would be a work of supererogation to cite them.
I, therefore, concur in the holding that no error was committed in overruling the petition for a change of venue, but for the reason only that the trial judge was warranted in finding that the supporting affiants were not credible persons within tíre meaning of the law, as' the discretion of the trial judge is limited to the determination of this fact.
The Chief Justice concurs in the views here expressed.