54 Goebel, J. In re Estate of Joseph Garrettson. Dr. Joseph Garrettson died intestate, leaving a widow, Julia A., and a son, Dr. George C. Garrettson. On the twentieth day of June, 1879, Dr. Joseph Garrettson and his wife entered into an agreement by which, in consideration of $2,500 paid to her, they agreed to live separate and apart from each other during their natural lives, and that said Julia A. was in no event to make any claim to the property of the said Dr. Joseph Garrettson. In pursuance of this agreement they did separate and remained so up to the time of the death of Dr. Joseph Garrettson. Julia A. Garrettson then made application to be appointed the administratrix of said estate, which was resisted by the son, George C., claiming that under the said agreement, Julia A., while technically the widow of Dr. Garrettson, was not his widow in fact, and that she was estopped from setting up any claim against his estate. The court held: 1. Separation alone does not deprive a wife of her right to administer; the marriage not having been dissolved, she is. still his widow. 2. Section 6005 gives to the persons mentioned, in the order prescribed, the absolute right to letters of administration, subject only to the condition that they are competent and suitable for discharge of the trust, and do not neglect, without sufficient cause, to take administration. 3. Under sec. 6005, a widow has the first right to administer upon the estate of her deceased husband, and the probate court has no power to deprive her of that right except for cause. Burch & Johnson for Mrs. Garrettson. CHANGE OF VENUE. [Franklin Common Pleas, Special Term, 1888.] STATE OF OHIO V. ALLEN O. MYERS. 57 1. A plea to the jurisdiction of the court and the challenge of a jury, by the defendant in a criminal case, on the ground that the case had not been legally transferred from another county for trial, are too late, if the jury has been impaneled. 2. The state has an equal right with the defendant to a change of venue, when there is no restriction of the right to the defendant by the law providing for such change of venue. 3. Section 7263 does not, in terms, or by implication, restrict the right to have a change of venue to the defendant in a criminal case, but it bestows the same right upon both the state and the defendant. 4. That section thus construed is not in conflict with section 10, article I, of the constitution. PUGH, J. (1.) The defendant was indicted in the county of Franklin, by a grand jury of that county. The indictment alleges that the crime imputed to the defendant was committed in that county. On the sixteenth day of July, 1888, at the April term of the common pleas court of Franklin county, upon the application of the prosecuting attorney of that county, which was supported by affidavits showing that a fair and impartial trial of the case could not he had there, the place of trial was, by order of that court, changed to this (Madison) county-a county adjoining Franklin county, and being in the same judicial district. The defendant made no resistance to the motion or application for a change of venue when it was made, although present in person and by counsel at the time; the affidavits were not combated by counteraffidavits, or evidence in other forms; no argument against the change was made by his counsel; he contended himself with having noted an exception to the order in the entry placed upon the journal of the court. The case was sent here; the time of the court has been engaged for nearly a week in selecting a jury from the citizens of Madison county, for the trial; the jury is now impaneled, but not sworn, and for the first time active resistance is made to the change of venue, by a plea to the jurisdiction of the court filed, and also by a challenge of the whole jury on these grounds: (1) That the jurors are not citizens and residents of Franklin county; (2) that the defendant is entitled to be tried in the last named county; (3) that the change of venue was not ordered on his motion or by his consent; and (4) that the court had no power, either under the statute (sec. 7263, Rev. Stat.) or the constitution (article 1, sec. 10) to order a change of venue upon the motion of the state. The good faith of the disclaimer, that the plea and challenge are not made to avoid a trial, would have been more obvious, if the opposition to the change of venue had been made in the other county when the application was heard by the court of that county. The large expense which has since been incurred in the preparation for the trial would have been avoided, if that court had concluded that the change of venue could not legally be made. The jury has, as has been stated, been impaneled. The swearing of a jury is not essential to its impaneling. The term "impaneling means the selection and the qualification of the jury. It has been so construed by courts of high authority. "No inference can be drawn from the word 'impaneled' in the record that the jury was sworn." Lyman v. The People, 4 Brad. (Ill.) 348. See also, 1 Bouvier's Dictionary, 773. "It appears from the definition of Lord Coke, that the term 'impaneled' was applied to the body of the jurors when the sheriff brought them into court with their names. Adhering to this definition, it is clear that this designation can refer to no process of drawing, selecting or swearing a particular jury, after the body of jurors for the term appear. But, curiously enough, the general understanding of this. term under our practice is, that it covers all the steps of ascertaining who shall be the twelve men to sit as jurors in a particular case. A jury may be said to be impaneled when they are ready to be sworn, and in this sense the term is used in the caption of this chapter." It is evident that the legislature, in enacting sec. 7300 of the Rev. Stat., used the words "impaneled" and "swear" to express different meanings in their application to a jury for a capital case; and the Supreme Court in Palmer v. State, 42 Ohio St., 596, recognize the discrimination. It is equally evident that the word "impaneled" in that section does not include the swearing of the jury. In all indictments, from time immemorial, the two words have been employed to express different and exclusive acts. Precedents are evidence of what the law is. According to Judge Yaple, most of Lord Eldon's qualifications as a famous and great chancellor were acquired from his careful and diligent study of precedents. The defendant having delayed his objection till after this jury was impaneled, waived his right to object. "A party cannot take part in and treat the proceedings as valid until a jury has been impaneled, and then challenge the jury as not of the county or district where the offense was alleged to have been committed." Maxwell's Criminal Procedure, 545, citing State v. Potter, 16 Kansas, 80. The defendant should have made his objection to the change of venue by a plea to the jurisdiction of the court, before the jury was impaneled. It is hardly necessary to say that this holding of the court is not predicated to what the defendant did in the other county where the application for change of venue was made. If the saving of an exception in the entry to the order of the court of that county, without a bill of exceptions, made a sufficient record for an appellate court to review, to pass on, the decision, there was no need for the plea to the jurisdiction or challenge of the jury to be interposed here. This court has no jurisdiction to review the decision made in Franklin county. (2.) It was contended that the prosecuting attorney had no right to make an application for change of venue, and that the court had no power to order such a change, under sec. 7263 of the Rev. Stat. That section is as follows: "All criminal cases shall be tried in the county where the offense was committed, unless it appear to the court, by affi davits, that a fair and impartial trial can not be had therein, in which case the court shall direct that the person accused be tried in some adjoining county." If this section does not infringe upon the provision of the constitution mentioned, the contention is unreasonable. Omitting all reference to the constitution, its meaning is not ambiguous. There is not a syllable in its language, which, either expressly or impliedly, limits the right to make the application for a change of venue to the defendant; indeed it does not expressly require that either party should make an application or motion; literally, the court may make the order without a motion by anybody. It is too obvious to need the support of an argument, that the right of the state to a change of venue is equal to that of the defendant, when the statute does not restrict the right to him., the statute being constitutional; and it has been so adjudged. 1 Bishop's Criminal Procedure, sec. 73; citing People v. Webb, 1 Hill, 179; People v. Baker, 3 Parker C. C., 181. The authority of the decisions cited by Bishop is not weakened by the fact that there was no provision in the New York constitution, at the time they were rendered, similar to sec. 10, of article I of our constitution; because the court is now construing our statute independently of the constitutional provision. The construction placed upon this section by the defendant's counsel is repugnant to its terms; it does violence to its language. (3.) It was urged that the transfer of the case to this county, without the defendant's consent, violated his constitutional right, and to sustain this contention an appeal is made to the section of our constitution just mentioned, which ordains, among other things, that a defendant in a criminal case shall be entitled to "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." It is argued that the defendant cannot be tried in any other than Franklin county without his consent; and that the word "district" in the guaranty cited is a synonym of "county," its neighboring word. If the accused of crime in all cases is guaranteed a trial in the county in which the offense is alleged to have been committed, the word "district" should not have been used by the makers of our constitution, and it is meaningless. It is a conclusion that violates one of the fundamental canons for the interpretation of laws, that a meaning must, if possible, be given to every word. To say that the word "district" is a synonym of the word "county" is an impeachment of the common school learning of the makers of our constitution. A constitution owes its force to its ratification by the people; and unless the language used in it has "acquired a settled meaning, thoroughly understood, not only in legal parlance, but in common acceptation, or unless the very nature of the subject indicates, or the context suggests, that it was used in a technical sense, it is to be taken in its common acceptation, its plain, ordinary, natural, untechnical sense." Endlich's Interpretation of Statutes, sec. 507. And as in a statute so in a constitution, it is prima facie true that a word or phrase is used in the same sense wherever it occurs. Id., sec. 514. This provision of section 10 of the bill of rights does not guarantee to a defendant, in all cases, a trial in the county in which the offense is alleged to have been committed. Nor was it intended thereby to fix or circumscribe the jurisdiction of the common pleas court. It was horrowed by the authors of our constitution of the United States constitution. But there is no decision of any United States court which throws any light on the question of construction. In the opinion of the court, the word "district," in the tenth section of the first article of our constitution, means a territory, a locality, larger than a county. It means a common pleas district, a judicial district. The word was used with reference to a division of the government designated in another part of the constitution by the same term. In the constitution of Wisconsin there is a similar provision. It differs from ours in this, that after the word "committed," this clause is added: "which county or district shall have been previously ascertained by law." In Wheeler v. The State, 24 Wis., 52, the same question raised here was decided. After noticing the similar provision in the constitution of the United States, and explaining the purpose of it, the court observed that it was copied into their "constitution without being precisely applicable to any organized division under our constitution and laws. It is true we have school districts, and senatorial and assembly districts. But, of course, it would not be claimed that it had reference to either of them. And, whether it can have any effect or application under the present order of things in this state, or under any that may hereafter be established by law, may be uncertain. But it is certain that there is no existing division known as a district, which was previously ascertained by law, and including Pepin county, where this offense was committed, which can create any doubt or question about the right of the prisoner to be tried in that county, which was previously ascertained by law." This utterance clearly proves that the court would have decided that the prisoner could have been tried out of the county, where the offense had been committed, if there had been any organized division of the government created by the constitution and designated by the term "dis trict," and to which the same word in the seventh section would have been applicable. This is a negative authority supporting the construction of the word "district" asserted by this court. The decision in Kirk v. The State, 1 Cold., 345, is another negative authority. The constitutional provision of Tennessee is substantially like ours. The question in the case was the construction of that provision. But It was held that the statute was repugnant to the constitution. the reasoning of the court makes it manifest that the authority does not support the contention of defendant. In the opinion it was said: "In the existing organization of our judicial system, the clause of the constitution in question is to be read, omitting the word' district'; which was used in the original constitution of 1796, with reference to the district system then existing, but which was abolished in 1809." Is it not plain that, if the district system, with reference to which the word "district" was used in the constitution, had not been abolished, the court would have decided the question the other way? Hence it is an authority adverse to the argument of defendant's counsel. Ex parte Rives, 40 Ala., 612, was cited. But in that case the court only decided that a criminal action could not be transferred to another county, against the consent of the defendant, because the presiding judge had been of counsel for the prosecution; all else that was said, on any other topic, was obiter dicta. In The State of Minnesota v. Robinson, 14 Minn., 447, it was held that a statute which provided, that when offenses are committed on the boundary lines of two counties, or within one hundred rods of the dividing line between them, they may be alleged in the indictment to have been committed in either of them, and may be prosecuted and punished in either county, was not in conflict with the provision of the constitution parallel to that of ours under consideration. In the opinion it was said that the constitutional provision did not "define or limit the jurisdiction of the courts of this state over criminal offenses, nor does it expressly, or in effect, guarantee to the accused in all cases a trial in the county in which the offense was committed, but it defines and limits the locality from which a jury shall be taken for the trial of the defendant in a criminal prosecution, and in effect, we think, secures to him a trial within the same limits." If it is constitutional for a legislature to authorize a court of one county to try a person for a crime committed one hundred rods over the line in the adjoining county, why can it not give the same authority when the crime had been committed one mile, or any distance, over the line in the latter? There is nothing in the constitution of our state to prevent the legislature from enacting that a grand jury may be called from two or more counties in the common pleas court, for the purpose of inquiring into offenses committed in any of such counties; nor is there any prohibition against the legislature providing that all criminal cases in a common pleas court, for two or more counties, may be tried at one place in one of the counties, providing the counties are in the same district. This is true, because there is no restriction in the constitution itself upon the territorial jurisdiction of a common pleas court. Section 3, of article 4, contains all that there is in that instrument in regard to the territorial jurisdiction of such courts. It requires the state to be divided 4 LB 26 |