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he was at the time incarcerated in jail awaiting the result of his appeal will not rebut the presumption of coercion."

BILLS AND NOTES-PROOF OF OTHER FORGERIES TO ESTABLISH FORGERY OF NOTE SUED ON.—The general rule as to the admission of evidence in cases of forgery is that, where the question is whether a certain person forged a particular instrument, proof is inadmissible that on another occasion he forged another paper, wholly disconnected with the one in controversy. In a recent case, however,-that of the First National Bank v. Wisdom's Executors, 63 S. W. Rep. 461the Supreme Court of Kentucky note an exception to this rule and the reason for it. In this case it was held that under a plea of non est factum to an action by a bank on a promissory note which was placed in the bank by its president, who soon thereafter absconded, being a confessed forger and defaulter, it was admissable for defendants, the executors of the person whose name was signed to the note, to prove that the president, after the note sued on was discounted, he had in his possession other notes purporting to have been signed by testator, and which were manifestly forgeries, as the transactions were logically connected, and when considered together authorize the conclusion that all the notes were prepared by the president to conceal his delinquency, with the intention to use them as it became necessary; and, besides, the fact that he forged the testator's name to the other notes would be admissible, at least, to show his capacity to imitate the signature. The reason for the general rule in such cases is that plaintiff would not be prepared to show the genuineness of other writings, and that such proof "introduces a foreign and irrelevant matter, destroying the unity of the issue." Dodge v. Haskell, 69 Me. 429; Dow v. Spenny, 29 Mo. 387. But as in this case, where there is a connection between the transactions, they may be given in evidence. Knight v. Heath, 23 N. H. 410; Lovell v. Briggs, 2 N. H. 218. So also, to prove fraud in a conveyance, evidence that the debtor, about the same time made other conveyances indicating fraudulent collusion, is admissible. Whitter v. Varney, 10 N. H. 291; Benham v. Cary, 11 Wend. 83; Blake v. White, 13 N. H. 267; Howe v. Reed, 12 Me. 515; Blalock v. Randall, 76 Ill. 224. The following authorities also hold proof of other forgeries to be admissible in evidence: Tyler v. Todd, 36 Conn. 218; Blalock v. Randall, 76 Ill. 224.

CONSTITUTIONAL LAW-INTERSTATE COMMERCE-STATE TAX ON PEDDLERS AND DRUMMERS.-A keen intellect and a most wonderful sense of discrimination and distinction is required to follow the line of construction, limiting the powers of the states over interstate commerce, drawn by the Supreme Court of the United States under the influence of the commerce clause of the Constitution. It is notable because of the fact that

the general rules are of less importance than the exceptions to them. For instance, the general rule is that no tax can be imposed by the state upon the sale and delivery of goods from a sister state. Then commence the exceptions. Can the "drummer" or "traveling salesman" who makes the sales and sends the contracts to the merchant he represents, be taxed for the privilege of doing business in the state. In Leisy v. Hardin, 135 U. U.S. 100, the supreme court held this to be an indirect interference with interstate commerce and unconstitutional. In Emert v. Missouri, 156 U. S. 296, however, the court modified this decision to the extent of holding that a tax on peddlers who delivered and sold their goods at the same time was not an interference with interstate commerce. Now comes an appeal from Texas desiring to know the line of distinction between peddlers and drummers. Saulsbury v. State, 63 S. W. Rep. 568. In this case a foreign manufacturer made buggies, and shipped them into the state in original packages, some of which contained buggies complete, others containing parts thereof. The buggies were then put together by the manufacturer's agent, and peddled by him throughout the state. When a buyer desired a vehicle not in stock, the agent sent the order to the manufacrurer, who shipped to the buyer. The court held that this did not constitute interstate commerce, and that the agent was properly convicted, under Pen. Code, art. 112, for peddling without first obtaining a license therefor. This statement of facts, presented a sort of cross between the high class drummer and the low grade peddler, which baffled classification. Relying strongly on the letter and spirit of the case of Emert v. Missouri, supra, the court justified the authority of the state in levying a peddlers license tax on the defendant in this case. We sympathize strongly with the court in this case and with Chief Justice Waite in his dissenting opinion in Robbins v. Taxing District, in being "unable to see any difference in principle between a tax on a seller by sample and a tax on a peddler." The tendency as evidenced by the Emert case and the later cases of Preston v. Finley, 72 Fed. Kep. 850, and Hopkins v. United States, 171 U. S. 596, is in the direction of permitting a wider latitude of state control over interstate commerce where the effect of the state regulation is clearly for the benefit of the state and where the regulation is practically a regulation of internal commerce.

MOTIONS FOR CHANGE OF VENUE IN CRIMINAL CASES.

Motions for change of venue in criminal cases in the great majority of cases are overruled. One reason for this is, usually, that the greater the necessity there is that the venue should be changed the greater is the number of "respectable citizens" who will

swear that the defendant can get a fair and impartial trial in the county where the indictment is found, and often the overwhelming evidence against a change is the strong. est proof that such change should be made. This seems paradoxical, but is explained by the strong public prejudice. It is said to be a psychological fact that a prejudiced man cannot do justice towards the object of that prejudice. This prejudice may be just, it may be a righteous indignation, yet it completely disqualifies the possess or thereof as a juror or judge, because the law guaranties to each citizen a trial by a fair, impartial and unprejudiced judge and jury. This is the right of a citizen accused of crime, but that the citizen may enjoy this right the mind of each jury man must be like unto a white sheet of paper absolutely free of black, disfiguring marks of preconceived prejudice and opinions.1

But there is a difference between preconceived opinion and prejudice. A man may have a preconceived opinion without having any prejudice, because prejudice carries with it a kind of ill will, hostility to the object of such prejudice, whereas a preconceived opinion as to the defendant's guilt or innocence may be without the least ill will or hostility to the defendant. And here comes in another essential difference between prejudice and preconceived opinion, in this: a preconceived opinion may be changed by evidence, whereas evidence has no tendency or power to change prejudice. A prejudiced juror is a deadly viper in the jury box, and you need never deceive yourself by imagining that he is a man of too high character to be swayed by his prejudice, since this passion influences the high and low very much alike. As far back as our judical records extend we can trace disposition in the courts and a leaning against the change of venue. And one of our state constitutions uses this language: "In criminal prosecutions the verification of facts in the vicinity where they happen is one of the greatest securities of the life, liberty and property of the citizen.''

In the days of Kings, of governmental oppression of the common people, it was

1 Blackstone's Com., vol. 3, p. 358 (Shars. Ed.); State v. Van Wye, 37 S. W. Rep. 939; State v. Powell, 37 S. W. Rep. 936.

* Mass. Const., part 1, art. 13.

considered an inestimable advantage to the citizen accused of crime to be tried in the county of the crime, where he would be surrounded on the day of trial by his relatives and friends. Even now most of our state laws provide that "the local jurisdiction of all offenses shall be in the county where the offense was committed." The love of the visne, the vicinia of the crime has exerted a strong influence on the courts. But these principles which were intended for the benefit of the citizen accused of crime should not be suffered to operate to his injury. The statutes providing for a change of venue, and the legislatures in enacting these statutes, did not intend that the venue in a criminal or other cause should he capriciously changed, or that it should be changed to suit the convenience of the defendants himself or his witnesses. And on the hearing of witnesses for a change of venue, it should be remembered and borne in mind that if the public mind is excited over the crime, that such crime is the cause of such excitement, and the defendant at the bar is the author of, and responsible for, such crime. But I do not speak this by authority, it is merely my private opinion. Indeed, it is very difficult to distinguish between excitement in the public mind on account of the crime and prejudice against the defendant on account of the crime. The latter will authorize a change of venue, but the former not; because, if excitement in the public mind on account of the crime would authorize a change of venue, then no notorious crime could be punished in the county where committed, and so the law providing for the local jurisdiction of the graver felonies would be altogether defeated. Whereas, if prejudice against the defendant on account of the crime should not authorize and require a change of venue, then the defendant would be tried for his life by a jury of his enemies. Such a trial would violate all laws and shock the consciences of all just men, yet we find decisions in which this fundamental distinction is not suffered to have free course and do its legitimate work.4 It cannot be truthfully

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.

said that mere excitement in the public mind will justify a change of venue. But when ever that excitement centralizes and becomes ill-will directed towards a particular individual, then the line of demarcation is clearly drawn, and the venue should be changed. Thus, on an indictment for conspiracy to destroy foxes, it was held to be no reason for changing the venue that the gentry of the county were addicted to fox hunting. But in another case where, on the hearing of a motion to change the venue, it was shown in evidence that one hundred citizens of the county had united in employing counsel to prosecute the prisoner, this, it was held, entitled him to a change of venue." These two cases well illustrate the subject. In the first case the gentry of the county were addicted to fox hunting, and might well be supposed to be moved by a crime which had for its object the destruction of foxes. But there was nothing to show that this excitement was directed towards the defendant at the bar, nor was there anything in the least going to show that they could not, or would not, give the defendant a fair and impartial trial. Whereas, in the latter case, the public mind was not only excited, but this excitement was specially directed towards the defendant, in that one hundred citizens had, of their own private means, employed counsel to prosecute the defendant.

This matter of obtaining a fair and impartial trial, by means of a fair and impartial jury, finds illustration in the case of the petit jury. The common law, like unto the old gothic constitution, originally provided that the jury for the trial of a cause should come from the immediate neighborhood where the facts were alleged to have occurred, and this was the original of venue, which venue was stated in the original writ, and also in the declaration and jury process, as a direction and indicator to the sheriff of the place where the facts transpired, so that he might go there and summon his jury; for, 6 Thomp. & C. 328; Wheeler v. State, 54 Ga. 371; State

living in the neighborhood, they were properly the very country or pais to which both parties had appealed, and were supposed to know beforehand the character of the parties and witnesses, and, therefore, they better knew what credit to give to the facts alleged in evidence. But this convenience was overbalanced by another very natural and almost unavoidable inconvenience, that jurors coming out of the immediate neighborhood would be apt to intermix their prejudices and partialities in the trial of right.?

So we see that in the case of the petit jury this inconvenience was felt. All these things go to establish the general law of jury trials. that in such trials care should always be taken that the actual trial should take place at such a distance from the home of the parties, as to forbid the possibility of the jury being influenced in their verdict by their personal feelings of like or dislike to the parties to the litigation. On the hearing of a motion for a change of venue the evidence, as to the state of the public mind, must have reference to the condition of things at the time of the hearing of such motion. And it seems that if the venue is changed it must be changed to the next or nearest county, free from such prejudice, and if possible to the county in which the court will next be held, when these two conditions exist at the same time, and of the two I suppose the latter would be given the preference, in furtherance of the constitutional requirement of a speedy trial. It is a further rule of law in the hearing of these motions for a change of venue, that the mere belief of witnesses that defendant cannot obtain a fair and impartial trial in the county of the finding of the indictment, will not, of itself, be received as evidence, but the witnesses must detail the facts and circumstances on which

7 Blackstone's Com., vol. 3, p. 359 (Shars. Ed.).

8 Am. & Eng. Ency. of Law, Title, Juries; State v. Boban, 15 Kan. p. 417; Rex v. Covale, 2 Bur. 884; Rex v. Hunt, 3 B & Ald. 444; Rex v. Cleuder, 2 Stra. 911; Greenway v. State, 29 Md. 442; Bisset v. State,

their belief is founded. 10 On the hearing of motions for change of venue, as said by the great Blackstone, the great object and purpose of the court should be to do right." And judges should bear in mind that when the public mind is powerfully excited against some unfortunate and miserable defendant, when the public is clamorous for his trial and conviction, and in its mad thirst for blood would tear the unfortunate man limb from limb, at such times courts should remember that it is a very easy matter for the prosecution to place on the stand a "number of the most prominent men of the community" to swear that the defendant can get a fair trial in that county.

Such witnesses

can be obtained without effort; nay, more, they will voluntarily come forward, whilst the poor miserable wretch who sits trembling beneath the loud voices of these swift witnesses finds no one who will stand up and speak the truth for him. Because, when he or his lawyer asks a citizen to speak for him, the citizen looks at it in this way. "I can't take the stand for that man; if I should do so I have everything to lose and nothing to gain; the public mind is intensely excited against him, and if I get up there and swear that I do not believe he can get a fair trial in this county I will be insulted before I get out of the court yard. They will say, I am reflecting on the people of the county; to testify will injure my business; I can't do it; you will please excuse me." And so if the defendant in such case gets anybody to testify for him it will ordinarily be some relation or his attorney, or some one of those bold, honest, fearless men, who, sympathizing with the defendant's distress, will speak the truth, though at a personal sacrafice. The point in hand is well illustrated by the case of Hawes v. State, supra.

Hawes was accused of murder, and, thereof, indicted. The public mind was terribly excited against Hawes. For several

eral thousand, began their march for the jail with axe and rope, calling and demanding Hawes that they might put him to death. The mob came on with shouts and curses; when it reached the outer jail yard fence it was met by the high sheriff of the county. The sheriff faced the mob and commanded them to halt. Knowing the fearless and resolute character of the sheriff the mob halted, but being told that the sheriff had only three or four men on guard the mob with a shout advanced. The sheriff retired, facing the mob until he approached within some three or four feet of the jail door, the mob still coming on. At a given signal from the sheriff twenty-five men armed appeared from the jail. The sheriff, then, for the last time, commanded the mob to halt; his command not being heeded he gave the order to fire, and continued firing; some ten or eleven men of the mob were killed. Circuit court coming on in a few weeks, and an indictment being found, and defendant arraigned and put on his trial, he moved for a change of venue, and in support of his motion offered seven witnesses, two of whom were his attorneys. The state met this evidence with the testimony of sixty-five witnesses, and could easily have produced thrice sixty-five more, that the public mind was entirely and perfectly free of any prejudice against the defendant, and that he could get a perfectly fair and impartial trial in that county. The circuit court with great promptness overruled defendant's motion for a change of venue, and the Supreme Court of Alabama sustained the action of the lower court.12 The above case is given because it is a fair sample of how such matters are disposed of in times of great excitement by the average circuit judge. If the public mind was not unduly excited against the defendant in Hawes' case, then it would be hard to find a case where there was such undue excitement. Why did a mob of several thousand men as

And there being nine thousand there was then nine thousand witnesses that the venue in that case should have been changed. This overrides the sixty-five respectable citizens. But these sixty-five witnesses for the state testified that there was some prejudice in the public mind after the riot, but that it was against the sheriff for the shooting. But how was it before the sheriff did any shooting? Did the mob go to the jail after the sheriff, or after Hawes? If we are to credit these sixty-five witnesses, this was a mob after Hawes, but the shooting changed the prejudice of the mob against Hawes into prejudice against the sheriff. Such reason

ing is ridiculous. Too often, too often, and sad to say, circuit judges, instead of standing up against these times of public excitement, turn their backs to justice, right and the law, and go with the crowd, crying crucify him, crucify him. In this Hawes case, the very fact of a mob assaulting the jail should overthrow any number of witnesses testifying that there was no undue prejudice in the public mind. The witnesses themselves seem to feel the force and truth of this, and this accounts for their ridiculous statement that the assault on the jail and the shooting turned and changed the public prejudice from Hawes to the sheriff.

The truth of the matter is this, the higher the public prejudice and excitement the greater the probability that the motion for a change of venue will be overruled, and in the great majority of cases they are over. ruled, as the reported cases will show. But there are some cases where motions for change of venue are granted. This exception is explained by the fact that now and then a bold, resolute justice-loving judge will look under the skirts of these ready witnesses for the state, and will see that what they mean by a fair trial is a trial that will result in breaking the defendant's neck. The result of this is, that the excitement which is produced in the public mind as the

But this condition of things is as difficult of attainment as desirable of possession. It should be remembered that in these important criminal cases the jury never rises above the outside public sentiment, and they will be governed by it so that, in a great criminal case, if you wish to know in general terms what the verdict of the jury will be, you have only to mix and talk with the people there assembled and find what is the public feeling on the matter. The jury, sitting in their box, watch the crowd assembled in the court room. They observe those unmistakable signs of approval or condemnation as some witnesses give material and pointed evidence. But, above all this, the jury know that they must live in this community after the trial is over, and they don't want the people, in case they should render a verdict contrary to public sentiment, pointing at them as they walk the street, or saying to them in person, "this is one of that jury who turned that murderer free." In all these cases public sentiment controls the jury. As has been heretofore said, the greater the necessity for a change of venue and the stronger the excitement and prejudice against the defendant, the more prominent citizens the state can and will produce to swear that the defendant can get a fair and impartial trial in that county.

And, generally, the necessity for a change of venue will be in exact ratio with the number of witnesses that the state produces to testify that a fair trial can be had in that county. When the state produces these numerous witnesses to swear to the absence of undue excitement in the public mind, it would subserve the ends of justice if the court would ask each of such witnesses this question: Have you formed or expressed any opinion as to the guilt or innocence of the prisoner at the bar? The witness' answer to this question will generally show, not only that there is undue excitement in the public mind, but that the witness himself is one of the chiefest of the excited and

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