Roll, J.
Appellant and five other persons were indicted by the grand jury of Vanderburgh county for
the crime of conspiring to commit a felony, to-wit, to present a false claim against Vanderburgh county under §2945, Burns’ Ann. St. 1926, §10-2101, Burns 1933, §2745, Baldwin’s 1934. Appellant was a member of the firm of Althoff-Howard Electric Company, Inc., who was awarded the contract to do certain electrical work on the court house in Vanderburgh county in the year 1920.
There was a trial before a jury of citizens of Posey county; a verdict of guilty was returned.
This is a companion case to the case of
Warren
v.
State
(1935), 208 Ind. 526, 196 N. E. 710, and presents substantially the same questions that were presented in that case, and for the reasons there pointed out this case is reversed. However, there is a question presented by the briefs in this case that was not presented in the Warren case, which we feel should receive our careful consideration.
The record discloses that appellant was tried twice before, by a jury in and of Vanderburgh county, and each jury failed to agree upon a verdict. The first trial was begun on March 30, 1931. The jury was selected, opening statement made and evidence was introduced on the opening day. The jury was discharged on April 3, 1931. The case was reset for trial on May 4, on which day a jury was selected, opening statements were made and evidence introduced before court adjourned. On May 9 this jury was discharged because it could not agree on a verdict. On May 13, 1931, the judge on his own motion announced, that “he had made a fair investigation in good faith, for that purpose and is satisfied that it will be improbable that a jury without bias or prejudice can be obtained in Vanderburgh county to try the above entitled cause against the said defendant Carl Althoff.” The order included a request upon the judge of the Posey circuit court to procure the drawing of
names for a jury to serve in said cause and to appear at th’e court house in Evansville, Indiana, on June 8, 1931, for that purpose, all in accordance with the provision of §2260, Burns’ Ann. St. 1926, §9-1507, Burns 1933, §2247, Baldwin’s 1934. Appellant filed written objections to the entering of this order, which objections were overruled by the court. The trial date of June 8 was vacated and the cause was reset for September 28, 1931. On September 8, 1931, the court again entered an order to the same effect as the one that was entered May 13, and mentioned above, to which entry appellant again filed his written objections, which was overruled and exceptions taken. Appellant then moved to vacate, set aside, and rescind said order and assigned therefor the same reasons that he had assigned in his objections to the original order, which motion was overruled by the court. On September 26, appellant moved the court to direct its clerk to issue a venire to the sheriff of Vanderburgh county directing the sheriff to summon the members of the regular panel of said court to try appellant, which motion was overruled. Appellant challenged each juror so drawn and placed in the jury box on the ground that he was a resident of Posey county and not a resident of Vanderburgh county. His objection was overruled. He objected to the order of the court directing the clerk' to swear the jury to- try the cause, which objection was overruled by the court. The jury was sworn and tried said cause, and returned a verdict of guilty.
Appellant by his various motions and objections to being tried by a jury drawn from Posey county under the provision of §2260,
swpra,
urges the unconstituti-onality of said statute, and that said statute gave the court no authority to call a jury from any county other than the county where the crime was alleged to have been committed. Appellant insists that under §13 of Article 1
of the Constitution of the State of Indiana, he is guaranteed the right to be tried by a jury drawn from Vanderburgh county. This section of the State Constitution provides:
“In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed. ...”
The statute under which the court acted is §2260, Burns’ Ann. St. 1926, §9-1507, Burns 1933, §2247, Baldwin’s 1934, and reads as follows:
“When a prosecution for felony is pending in any court of this state having jurisdiction, and before or during the impaneling of a jury therein, the judge of such court shall be satisfied, after having made a fair investigation in good faith for that purpose, that, from any cause, it will be improbable that a jury without bias or prejudice can be obtained within the county wherein the prosecution is pending, he shall enter an order of such determination, and shall, include in such order a request upon the judge of the circuit court of an adjoining county, to be named in such order, to forthwith procure the drawing of names for a jury to be summoned to appear before the court to serve as jurors in such cause, at a time to be named in such order. And the clerk of the court wherein such order is made shall forthwith transmit a transcript of such order to the judge of the circuit court of the county therein named.”
We have been unable to find any case in Indiana where the question presented by this appeal has been discussed. Kentucky has a statute in some respects similar to the one in question, and the constitutionality of that statute was challenged in the case of
Moseley v. Commonwealth
(1905), 27 Ky. Law 214, 84 S. W. 748. The court did not discuss the question but did say that the validity of said statute had been upheld in the case of
Brown
v.
Commonwealth
(1899), 20 Ky. Law Rep. 1552, 49 S. W. 545;
Massie
v.
Commonwealth
(1896), 18 Ky. Law Rep.
367, 36 S. W. 550, and
Roberts
v.
Commonwealth
(1893), 94 Ky. 502, 22 S. W. 845. An examination of these cases will disclose that the constitutional question was never raised or discussed and was not decided in either of them.
Many of the states of the Union have statutes authorizing a change of venue on behalf of the prosecution. The constitutionality of these statutes have been questioned with varying results. See
State of Iowa ex rel. Fletcher et al.
v.
District Court of Jefferson County
(1931), 213 Iowa 822, 238 N. W. 290, 80 A. L. R. 339, and annotations following. In some of the states the statute was upheld because of the particular language used in their Constitution.
State
v.
Miller
(1870), 15 Minn. 344;
State ex rel. Hornbeck
v.
Durflinger
(1905), 73 Ohio St. 154, 76 N. E. 291. But in all the cases which we have examined, where the statute authorizing the state to ask for a change of venue from the county have been upheld, the change was conditioned upon the fact that a fair and impartial jury could not be obtained in the county where the alleged crime was committed.
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Roll, J.
Appellant and five other persons were indicted by the grand jury of Vanderburgh county for
the crime of conspiring to commit a felony, to-wit, to present a false claim against Vanderburgh county under §2945, Burns’ Ann. St. 1926, §10-2101, Burns 1933, §2745, Baldwin’s 1934. Appellant was a member of the firm of Althoff-Howard Electric Company, Inc., who was awarded the contract to do certain electrical work on the court house in Vanderburgh county in the year 1920.
There was a trial before a jury of citizens of Posey county; a verdict of guilty was returned.
This is a companion case to the case of
Warren
v.
State
(1935), 208 Ind. 526, 196 N. E. 710, and presents substantially the same questions that were presented in that case, and for the reasons there pointed out this case is reversed. However, there is a question presented by the briefs in this case that was not presented in the Warren case, which we feel should receive our careful consideration.
The record discloses that appellant was tried twice before, by a jury in and of Vanderburgh county, and each jury failed to agree upon a verdict. The first trial was begun on March 30, 1931. The jury was selected, opening statement made and evidence was introduced on the opening day. The jury was discharged on April 3, 1931. The case was reset for trial on May 4, on which day a jury was selected, opening statements were made and evidence introduced before court adjourned. On May 9 this jury was discharged because it could not agree on a verdict. On May 13, 1931, the judge on his own motion announced, that “he had made a fair investigation in good faith, for that purpose and is satisfied that it will be improbable that a jury without bias or prejudice can be obtained in Vanderburgh county to try the above entitled cause against the said defendant Carl Althoff.” The order included a request upon the judge of the Posey circuit court to procure the drawing of
names for a jury to serve in said cause and to appear at th’e court house in Evansville, Indiana, on June 8, 1931, for that purpose, all in accordance with the provision of §2260, Burns’ Ann. St. 1926, §9-1507, Burns 1933, §2247, Baldwin’s 1934. Appellant filed written objections to the entering of this order, which objections were overruled by the court. The trial date of June 8 was vacated and the cause was reset for September 28, 1931. On September 8, 1931, the court again entered an order to the same effect as the one that was entered May 13, and mentioned above, to which entry appellant again filed his written objections, which was overruled and exceptions taken. Appellant then moved to vacate, set aside, and rescind said order and assigned therefor the same reasons that he had assigned in his objections to the original order, which motion was overruled by the court. On September 26, appellant moved the court to direct its clerk to issue a venire to the sheriff of Vanderburgh county directing the sheriff to summon the members of the regular panel of said court to try appellant, which motion was overruled. Appellant challenged each juror so drawn and placed in the jury box on the ground that he was a resident of Posey county and not a resident of Vanderburgh county. His objection was overruled. He objected to the order of the court directing the clerk' to swear the jury to- try the cause, which objection was overruled by the court. The jury was sworn and tried said cause, and returned a verdict of guilty.
Appellant by his various motions and objections to being tried by a jury drawn from Posey county under the provision of §2260,
swpra,
urges the unconstituti-onality of said statute, and that said statute gave the court no authority to call a jury from any county other than the county where the crime was alleged to have been committed. Appellant insists that under §13 of Article 1
of the Constitution of the State of Indiana, he is guaranteed the right to be tried by a jury drawn from Vanderburgh county. This section of the State Constitution provides:
“In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed. ...”
The statute under which the court acted is §2260, Burns’ Ann. St. 1926, §9-1507, Burns 1933, §2247, Baldwin’s 1934, and reads as follows:
“When a prosecution for felony is pending in any court of this state having jurisdiction, and before or during the impaneling of a jury therein, the judge of such court shall be satisfied, after having made a fair investigation in good faith for that purpose, that, from any cause, it will be improbable that a jury without bias or prejudice can be obtained within the county wherein the prosecution is pending, he shall enter an order of such determination, and shall, include in such order a request upon the judge of the circuit court of an adjoining county, to be named in such order, to forthwith procure the drawing of names for a jury to be summoned to appear before the court to serve as jurors in such cause, at a time to be named in such order. And the clerk of the court wherein such order is made shall forthwith transmit a transcript of such order to the judge of the circuit court of the county therein named.”
We have been unable to find any case in Indiana where the question presented by this appeal has been discussed. Kentucky has a statute in some respects similar to the one in question, and the constitutionality of that statute was challenged in the case of
Moseley v. Commonwealth
(1905), 27 Ky. Law 214, 84 S. W. 748. The court did not discuss the question but did say that the validity of said statute had been upheld in the case of
Brown
v.
Commonwealth
(1899), 20 Ky. Law Rep. 1552, 49 S. W. 545;
Massie
v.
Commonwealth
(1896), 18 Ky. Law Rep.
367, 36 S. W. 550, and
Roberts
v.
Commonwealth
(1893), 94 Ky. 502, 22 S. W. 845. An examination of these cases will disclose that the constitutional question was never raised or discussed and was not decided in either of them.
Many of the states of the Union have statutes authorizing a change of venue on behalf of the prosecution. The constitutionality of these statutes have been questioned with varying results. See
State of Iowa ex rel. Fletcher et al.
v.
District Court of Jefferson County
(1931), 213 Iowa 822, 238 N. W. 290, 80 A. L. R. 339, and annotations following. In some of the states the statute was upheld because of the particular language used in their Constitution.
State
v.
Miller
(1870), 15 Minn. 344;
State ex rel. Hornbeck
v.
Durflinger
(1905), 73 Ohio St. 154, 76 N. E. 291. But in all the cases which we have examined, where the statute authorizing the state to ask for a change of venue from the county have been upheld, the change was conditioned upon the fact that a fair and impartial jury could not be obtained in the county where the alleged crime was committed. We have found no case upholding the right to change the venue in a criminal case over the objection of the defendant where it was only improbable that a fair and impartial jury could be obtained.
It certainly was the clear intent of the framers of our Constitution to guarantee to one accused not only a trial in the county but by a jury of the county where the alleged crime was committed when such a jury could be obtained. Whether or not a statute would be valid which would authorize the court to call a jury from another county when a fair and impartial trial could not be had in the county where the crime was alleged to have been committed, we need not decide. To permit a judge of a trial court to call a jury from another county other than the one where the crime is alleged
to have been committed, when he becomes satisfied after having made an investigation in good faith for that purpose, that it would be
improbable
that a fair and impartial jury cannot be obtained, over the objections of the defendant and without any opportunity of being heard on the subject would certainly be depriving him of one of the most sacred and guarded rights secured by our Constitution. Blackstone says:
“When, therefore, a prisoner on his arraignment has pleaded not guilty, and for his trial hath put himself upon the country, which country the jurors-are, the sheriff of the county must return a panel of jurors, . . . freeholders without just exception, and of the vinse or neighborhood, which is interpreted to be the county where the fact is committed.” 2 Cooley’s Blackstone, 3rd Ed. 491.
The right of an accused to be tried by his neighbors and peers is ancient and sacred and if there is any exception to the common law rule it is only when a fair and impartial jury cannot be obtained in the county and not when it is only improbable that such a jury cannot be obtained.
We conclude that the lower court committed reversible error in entering the order directing a jury to be called from an adjoining county over the objection of the defendant. For this error and also the errors pointed out in the case of
Warren
v.
State, supra,
the judgment of the trial court is reversed with instructions to sustain appellant’s objection to entering the order herein mentioned and for further proceedings not inconsistent with this opinion.
Judgment reversed.
DISSENTING OPINION