People v. Lee

Bryan, J., concurred.

On the trial of this cause in the Court below, which was an indictment for murder, the prisoner filed an application for a change of venue, based on his affidavit.

The power to grant a change of venue has heretofore been considered discretionary upon the part of the Court below, and we have always refused to supervise it except in extreme cases. This rule, however, has been materially altered by the Act of May 15, 1854, “ Amendatory of an Act to regulate proceedings in Courts of Justice,” by the 33d section of which an appeal is given in this case. So that having a complete appellate power over the subject, it is not to be supposed that we will trust implicitly in the discretion of inferior Courts.

In many of the States, by express statute, a change of venue will be awarded on the simple affidavit of the prisoner, that a fair and impartial trial cannot be had, or of bias, or prejudice upon the part of the Judge before whom the case is to be tried. In the present case not only has this been done, but it is shown, that over one hundred citizens united in employing counsel to prosecute the defendant.

Without any opposing affidavits tending to show that a…