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he was at the iime incarcerated in jail awaiting the general rules are of less importance than the the result of his appeal will not rebut the pre exceptions to them. For instance, the general sumption of coercion."
rule is that no tax can be imposed by the state
upon the sale and delivery of goods from a sister BILLS AND NOTES-PROOF OF OTHER FOR state. Tben commence the exceptions. Can the GERIES TO ESTABLISH FORGERY OF NOTE SUED "drummer" or "traveling salesman' who makes on.-The general rule as to the admission of evi the sales and sends the contracts to the merchant dence in cases of forgery is that, where the ques be represents, be taxed for the privilege of doing tion is whether a certain person forged a par business in the state. In Leisy v. Hardin, 135 C. ticular instrument, proof is inadmissible tbat on | U.S. 100, the supreme court held this to be an inanother occasion be forged another paper, wholly direct interference with interstate coinmerce and disconnected with the one in controversy. In a re unconstitutional. In Emert v. Missouri, 156 U. cent case, however,-that of the First National S. 296, however, the court modified tbis decision Bank v. Wisdom's Executors, 63 S. W. Rep. 461 to the extent of holding that a tax on peddlers the Supreme Court of Kentucky note an ex who delivered and sold their goods at the same ception to this rule and the reason for it. In this time was not an interference with interstate comcase it was held that under a plea of non est factum merce. Now comes an appeal from Texas deto an action by a bank on a promissory note siring to know the line of distinction between which was placed in the bank by its president, peddlers and drummers. Saulsbury v. State, 63 who soon thereafter absconded, being a confessed S. W. Rep. 568. In this case a foreign manuforger and defaulter, it was admissable for de facturer made buggies, and shipped them into fendants, the executors of the person whose name the state in original packages, some of wbich was signed to the note, to prove that the pres contained buggies complete, others containing ident, after the note sued on was discounted, he parts thereof. The buggies were then put had in bis possession other notes purporting to together by the manufacturer's agent, and pedhave been signed by testator, and which were dled by him throughout the state. When a manifestly forgeries, as the transactions were buyer desired a vehicle not in stock, the agent logically connected, and when considered to
sent the order to the manufacrurer, who shipped gether authorize tbe conclusion that all the notes to the buyer. The court held that this did not were prepared by the president to conceal his constitute interstate commerce, and that the delinquency, with the intention to use tbem as it agent was properly convicted, under Pen. Code, became necessary; and, besides, the fact that he
art. 112, for peddling without first obtaining a liforged the testator's name to the other notes
cense therefor. This statement of facts, presented would be admissible, at least, to show bis capac a sort of cross between the high class drummer and ity to imitate the signature. The reason for the the low grade peddler, which baffled classification. general rule in such cases is that plaintiff would Relying strongly on the letter and spirit of the not be prepared to show the genuineness of other
case of Emert v. Missouri, supra, the court justiwritings, and that such proof “introduces a for fied the authority of the state in levying a pedeign and irrelevant matter, destroying the unity dlers license tax on the defendant in this case. of the issue." Dodge v. Haskell, 69 Me. 429; We sympathize strongly with the court in this Dow y. Spenny, 29 Mo. 387. But as in this case,
case and with Chief Justice Waite in his dissent. where there is a connection between the trans ing opinion in Robbins v. Taxing District, in actions, they may be given in evidence. Knight being “unable to see any difference in principle v. Heath, 23 N. H. 410; Lovell v. Briggs, 2 N. H.
between a tax on a seller by sample and a tax on 218. So also, to prove fraud in a conveyance, a peddler." The tendency as evidenced by the evidence that the debtor, about the same time
Emert case and the later cases of Preston v. made other conveyances indicating fraudulent Finley, 72 Fed. Kep. 850, and Hopkins v. United collusion, is admissible. Whitter v. Varney, 10 States, 171 U. S. 596, is in the direction of perN. H. 291; Benham v. Cary, 11 Wend. 83; Blake mitting a wider latitude of state control over inv. White, 13 N. H. 267; Howe v. Reed, 12 Me. 515; terstate commerce where the effect of the state Blalock v. Randall, 76 Ill. 224. The following regulation is clearly for the benefit of the state authorities also hold proof of other forgeries to
and where the regulation is practically a regbe admissible in evidence: Tyler v. Todd, 36 ulation of internal commerce. Conn. 218; Blalock v. Randall, 76 III. 224.
MOTIONS FOR CHANGE OF VENUE CONSTITUTIONAL LAW-INTERSTATE COM
IN CRIMINAL CASES. MERCE-STATE TAX ON PEDDLERS AND DRUMMERS.-A keen intellect and a most wonderful sense Motions for change of venue in criminal of discrimination and distinction is required to
cases in the great majority of cases are overfollow the line of construction, limiting the pow
ruled. One reason for this is, usually, that ers of the states over interstate commerce, drawn by the Supreme Court of the United States under
the greater the necessity there is that the the influence of the commerce clause of the Con. venue should be changed the greater is the stitution. It is notable because of the fact chat number of “respectable citizens' who will
swear that the defendant can get a fair and considered an inestimable advantage to the impartial trial in the county where the in citizen accused of crime to be tried in the dictment is found, and often the overwhelm county of the crime, where he would be ing evidence against a change is the strong. surrourded on the day of trial by his relaest proof that such change should be made. tives and friends. Even now most of our This seems paradoxical, but is explained by state laws provide that "the local jurisdicthe strong public prejudice. It is said to be tion of all offenses shall be in the county a psychological fact tbat a prejudiced man where the offense was committed.” The cannot do justice towards the object of tbat love of the visne, the vicinia, of the crime prejudice. This prejudice may be just, it has exerted a strong influence on the courts. may be a righteous indignation, yet it com. But these principles which were intended pletely disqualifies the possessor thereof as for the benefit of the citizen accused of a juror or judge, because the law guaran crime should not be suffered to operate to ties to each citizen a trial by a fair, impartial his injury. The statutes providing for a and unprejudiced judge and jury. This is change of venue, and the legislatures in enthe right of a citizen accused of crime, but acting these statutes, did not intend that tbe that the citizen may enjoy this right the venue in a criminal or other cause should mind of each jury man must be like upto a he capriciously changed, or that it should white sheet of paper absolutely free of black, be changed to suit the convenience of the disfiguring marks of preconceived prejudice defendants himself or his witnesses. And and opinions."
on the hearing of witnesses for a change of But there is a difference between precon venue, it should be remembered and borne ceived opinion and prejudice. A man may have in mind that if the public mind is excited a preconceived opinion without having any over the crime, that such crime is the cause prejudice, because prejudice carries with it a of such excitement, and the defendant at kind of ill will, hostility to the object of such the bar is the author of, and responsible for, prejudice, whereas a preconceived opinion such crime. But I do not speak this by as to the defendant's guilt or innocence may authority, it is merely my private opinion. 'be without the least ill will or hostility to the Indeed, it is very difficult to distinguish bedefendant. And here comes in anotber es tween excitement in the public mind on acsential difference between prejudice and pre count of the crime and prejudice against the conceived opinion, in this: a preconceived defendant on account of the crime. The opinion may be changed by evidence, where latter will authorize a change of venue, but as evidence has no tendency or power to the former not; because, if excitement in change prejudice. A prejudiced juror is a the public mind on account of the crime deadly viper in the jury box, and you need would authorize a change of venue, then never deceive yourself by imagining that he is no notorious crime could be punished in the & man of too high character to be swayed by
county where committed, and so the law his prejudice, since this passion influences the providing for the local jurisdiction of the high and low very much alike. As far back graver felonies would be altogether defeated. as our judical records extend we can trace a | Whereas, if prejudice against the defendant disposition in the courts and a leaning on account of the crime should not authoragainst the change of venue. And one of ize and require a change of venue, then our state constitutions uses this language: the defendant would be tried for his life by "In criminal prosecutions the verification of a jury of his enemies. Such & trial would facts in the vicinity wbere they happen is violate all laws and shock the consciences one of the greatest securities of the life, of all just men, yet we find decisions in liberty and property of the citizen.''?
which this fundamental distinction is not In the days of Kings, of governmental suffered to have free course and do its legitoppression of the common people, it was imate work.4 It cannot be truthfully said that mere excitement in the public mind living in the neighborhood, they were prop. will justify a change of venue. But when- erly the very country or pais to which both ever that excitement centralizes and be parties had appealed, and were supposed to comes ill-will directed towards a particular | know beforehand the character of the parindividual, then the line of demarcation ties and witnesses, and, therefore, they better is clearly drawn, and the venue should be knew wbat credit to give to the facts alleged changed. Thus, on an indictment for con in evidence. But this convenience was overspiracy to destroy foxes, it was held to be balanced by another very natural and almost no reason for changing the venue that the | unavoidable inconvenience, that jurors com. gentry of the county were addicted to fox ing out of the immediate . neighborhood hunting. But in another case where, on the would be apt to intermix their prejudices hearipg of a motion to change the venue, it and partialities in the trial of right.? was shown in evidence that one hundred cit So we see that in the case of the petit jury izens of the county had united in employing this inconvenience was felt. All these things counsel to prosecute the prisoner, this, it was | go to establish the general law of jury trials, held, entitled him to a change of venue.5 that in such trials care should always be These two cases well illustrate the subject. taken that the actual trial should take place In the first case the gentry of the county at such a distance from the home of the parwere addicted to fox hunting, and might well ties, as to forbid the possibility of the jury be supposed to be moved by a crime which being influenced in their verdict by their had for its object the destruction of foxes. personal feelings of like or dislike to the parBut there was nothing to show that this ex ties to the litigation. On the hearing of a citement was directed towards the defend motion for a change of venue the evidence, ant at the bar, nor was there anything in as to the state of the public mind, must have the least going to show that they could not, reference to the condition of things at the or would not, give the defendant a fair and | time of the hearing of such motion. And it impartial trial. Whereas, in the latter case, seems that if the venue is changed it must the public mind was not only excited, but be changed to tbe next or nearest county. this excitement was specially directed to free from such prejudice, and if possible to wards the defendant, in that one hundred the county in which the court will next be citizens bed, of their own private means, em held, when these two conditions exist at ployed counsel to prosecute the defendant. the same time, and of the two I suppose the
1 Blackstone's Com., vol. 3, p. 358 (Shars. Ed.); State v. Van Wye, 37 S. W. Rep. 939; State v. Powell, 37 8. W. Rep. 936.
? Mass. Const., part 1, art. 13.
3 People v. Harris, 4 Dev. 150; People v. Baker, 3 Parker, C. C., 181; Reg. v. Cavendish, 2 Cox, C. C. 175.
4 People v. Graham, 21 Cal. 261; People v. Samonis, 7 Blackstone's Com., vol. 3, p. 359 (Shars. Ed.). the place where the facts transpired, so that
This matter of obtaining a fair and im latter would be given the preference, in partial trial, by means of a fair and impar furtherance of the constitutional requiretial jury, finds illustration in the case of the ment of a speedy trial. It is a further rule petit jury. The common law, like unto the of law in the hearing of these motions for a old gothic constitution, originally provided change of venue, that the mere belief of wit. that the jury for the trial of a cause should nesses that defendant cannot obtain a fair come from the immediate 'neighborhood and impartial trial in the county of the findwhere the facts were alleged to have occur. ing of the indictment, will not, of itself, be red, and this was the original of venue, received as evidence, but the witnesses must which venue was stated in the original writ, detail the facts and circumstances on whicb and also in the declaration and jury process, as a direction and indicator to the sheriff of
8 Am. & Eng. Ency. of Law, Title, Juries; State v. he might go there and summon bis jury ;6 for, Boban, 15 Kan. p. 417; Rex v. Covale, 2 Bur. 834;
Rex v. Hunt, 3 B & Ald. 444; Rex v. Cleuder, 2 Stra. 6 Thomp. & C. 328; Wheeler v. State, 54 Ga. 371; State 911; Greenway v. State, 29 Md. 442; Bisset v. State, v. Gut, 13 Minn. 341; State v. Miller, 15 Minn. 344; 53 Md. 408; State v. Hutchinson, 27 Iowa, 212; State v. Martin v. State, 35 Wis. 2941; Reg. v. King, 2 Chit. Gibson, 29 Iowa, 295; State v. Potter, 15 Kan. 80; Mar. 217; Reg. v. Patent Eureka & Co., 13 L. T. (N. S.)
tin v. State, 35 Wis. 294; Moser v. State, 11 Hump. 232; 365; Rex v. Hunt, 3 B. & Ald. 444, 2 Chit. 130.
People v. Webb, 1 Hill (N. Y.), 179; State v. Shepherd, 5 Rex v. King, 2 Chit. 217; People v. Lee, 5 Cal. 8 Oreg. 195; State v. Hall, 73 N. Car. 134; Davis v. 353.
State, 39 Md. 355; Anonymous v. State, 9 Fla. 530; 6 Stephen on Pleading, p. 230; Shipman's Common Kelly v. State, 52 Ala. 361; State v. Burris, 4 Harr. Law Pleading, pp. 379-388; Chitty on Pleading, p. (Dela.) 582. 310.
9 Hawes v. State (Ala.), 7 South, Rep. 308.
their belief is founded.'0On the bearing of eral thousand, began their march for the jail motions for change of venue, as said by the | with axe and rope, calling and demanding great Blackstone, the great object and pur Hawes that they might put him to death. pose of the court should be to do right." The mob came on with shouts and curses ; And judges should bear in mind that when when it reached the outer jail yard fence it the public mind is powerfully excited against was met by the high sheriff of the county. some unfortunate and miserable defendant, | The sheriff faced the mob and commanded when the public is clamorous for his trial them to balt. Knowing the fearless and resoand conviction, and in its mad thirst for lute character of the sheriff tbe mob halted, blood would tear the unfortunate man limb but being told that the sheriff had only three from limb, at such times courts should re- or four men on guard the mob with a shout member that it is a very easy matter for the advanced. The sheriff retired, facing the mob prosecution to place on the stand a “number until he approacbed within some three or of the most prominent men of the com four feet of the jail door, the mob still community" to swear that the defendant can get ing on. At a given signal from the sheriff a fair trial in that county. Such witnesses twenty-five men armed appeared from the can be obtained without effort; nay, more, jail. The sheriff, then, for the last time, comthey will voluntarily come forward, whilst manded the mob to balt; his command not the poor miserable wretch who sits trembling being heeded he gave the order to fire, and beneath the loud voices of these swift wit continued firing; some ten or eleven men of nesses finds no one who will stand up and the mob were killed. Circuit court coming speak the truth for him. Because, when he on in a few weeks, and an indictment being or his lawyer asks a citizen to speak for him, | found, and defendant arraigned and put on the citizen looks at it in this way. “I can't his trial, he moved for a change of venue, take the stand for that man; if I should do and in support of his motion offered seven so I have everytbing to lose and nothing to witnesses, two of whom were his attorneys. gain; the public mind is intensely excited The state met this evidence with the testiagainst bim, and if I get up there and swear mony of sixty-five witnesses, and could that I do not believe he can get a fair trial easily bave produced tbrice sixty-five more, in this county I will be insulted before I get that the public mind was entirely and perout of the court yard. They will say, I am fectly free of any prejudice against the dereflecting on tbe people of the county ; to fendant, and that he could get a perfectly testify will injure my business; I can't do fair and impartial trial in that county. The it; you will please excuse me.” And so if | circuit court with great promptness overthe defendant in such case gets anybody to ruled defendant's motion for a change of testify for him it will ordinarily be some re venue, and the Supreme Court of Alabama lation or his attorney, or some one of those sustained the action of the lower court.12 bold, honest, fearless men, who, sympa The above case is given because it is a fair thizing with the defendant's distress, will sample of how such matters are disposed of speak the truth, though at a personal sacra. in times of great excitement by the average fice. The point in hand is well illustrated circuit judge. If the pubic mind was not by the case of Hawes v. State, supra.
unduly excited against the defendant in Hawes was accused of murder, and, Hawes' case, then it would be hard to find a thereof, indicted. The public mind was ter case where there was such undue excitement. ribly excited against Hawes. For several Why did a mob of several tbousand men asnights after his arrest and incarceration, sault the jail if there was no prejudice angry and excited crowds of men moved and against the defendant? Was not each man swayed about the jail where Hawes was im of that apgry mob a strong witness that prisoned. Finally, in a few nights, the crowd, there was undue excitement against Hawes? angry and threatening, to the number of sev There having been in that mob, estimated And there being nine thousand there was But this condition of things is as difficult then nine thousand witnesses that the venue of attainment as desirable of possession. in that case should bave been changed. This It should be remembered that in these imoverrides the sixty-five respectable citizens. portant criminal cases the jury never rises But these sixty-five witnesses for the state above the outside public sentiment, and they testified that there was some prejudice in the will be governed by it so that, in a great public mind after the riot, but that it was criminal case, if you wish to know in general against the sheriff for the shootiog. But terms what the verdict of the jury will be, how was it before the sheriff did any shoot you have only to mix and talk with the people ing? Did the mob go to the jail after the there assembled and find wbat is the public sheriff, or after Hawes? If we are to credit feeling on the matter. Tbe jury, sitting in these sixty-five witnesses, this was a mob their box, watch the crowd assembled in the after Hawes, but the shooting changed the court room. They observe those unmistak. prejudice of the mob against Hawes into able signs of approval or condemnation as prejudice against the sheriff. Such reason some witnesses give material and pointed evi. ing is ridiculous. Too often, too often, and dence. But, above all this, the jury know that sad to say, circuit judges, instead of stand they must live in this community after the ing up against these times of public excite trial is over, and they don't want the people, ment, turn their backs to justice, right and in case they should render a verdict contrary the law, and go with the crowd, crying tn public sentiment, pointing at them as they crucify him, crucify him. In this Hawes walk the street, or saying to them in person, case, the very fact of a mob assaulting the “this is one of that jury who turned that jail should overtbrow any number of wit murderer free.” In all these cases public nesses testifying that there was no undue sentiment controls the jury. As has been prejudice in the public mind. The witnesses heretofore said, the greater the necessity for themselves seem to feel the force and truth a change of venue and the stronger the ex. of this, and this accounts for their ridiculous citement and prejudice against the defendant, statement that the assault on the jail and the more prominent citizens the state can and the shooting turned and changed the public will produce to swear that the defendant can prejudice from Hawes to the sheriff.
nine thousand men, was not each one of 19 People v. Plunner, 9 Cal. 298; People v. Long these men a witness to the public prejudice? Island R. R., Palker, C. C. 602; Reg. v. Palmer, 11, Ellis & B, 1024. 11 Blackstone's Com. vol. 3, p. 391 (Shars. Ed.).
12 Hawes v. State (Ala.), 7 Soutb. Rep. 303.
get a fair and impartial trial in that county. The truth of the matter is this, the higher And, generally, the necessity for a change the public prejudice and excitement the of venue will be in exact ratio with the pumgreater the probability that the motion for a ber of witnesses that the state produces to change of venue will be overruled, and in testify that a fair trial can be had in that the great majority of cases they are over | county. When the state produces these ruled, as the reported cases will show. But numerous witnesses to swear to the absence there are some cases wbere motions for of undue excitement in the public mind, it change of venue are granted. This excep would subserve the ends of justice if the tion is explained by the fact that now and court would ask each of such witnesses this then a bold, resolute justice-loving judge will question: Have you formed or expressed look under the skirts of these ready wit. any opinion as to the guilt or innocence of nesses for the state, and will see that wbat the prisoner at the bar? Tbe witness' they mean by a fair trial is a trial that will answer to this question will generally show, result in breaking tbe defendant's neck. not only that there is undue excitement in The result of this is, that the excitement the public mind, but that the witness himself which is produced in the public mind as the is one of the chiefest of the excited and result and consequence of the crime, and prejudiced persons. These times and cases of which is directed solely against the author of high public excitement when a mad and such crime, whoever he may be, and not blood-thirsty populace is thirsting for the against any particular individual, is in no blood of the prisoner at the bar, and gpashsense undue excitement, and will by no ing upon him with their teeth, these are means justify a cbange of venue. 13
the occasions that test a judge's mettle, and 13 State v. Greer, 22 W. Va. 800; State v. Rhea, 25 | 10 Lea, 673; People v. Goldenson, 76 Cal. 376; State Kan. 576; Scamo v. State, 84 Ala. 410; Poe v. State, I v. Boban, 15 Kan. 407.