People v. Sammis

6 Thomp. & Cook 328, 10 N.Y. Sup. Ct. 560

• Court: New York Supreme Court
• Decided: February 15, 1875
• Status: Published

Opinion

Barnard, P. J.

No sufficient case is made to change the place of trial upon these indictments. It is the right, both of the people and of the person accused of crime, to have the trial take place in the county where the crime is alleged to have been committed. When an accused person applies to change the place of trial, he must, under all the cases make a clear case, that by reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid. People v. Vermilyea, 7 Cow. 139; People v. Bodine, 7 Hill, 147. Affidavits stating belief of persons that a fair trial cannot be obtained, are not sufficient; facts and circumstances must be established by the moving papers.

The only facts established by the defendant on this application are that great excitement exists in Suffolk county in reference to an inhuman and nameless outrage on Charles G-. Kelsey; that the public newspapers in the town of Huntington, where the crime was committed, have had articles more or less expressing the popular passion.

I fail to discover that any passion or prejudice exists as to the guilt of any particular person. If the fact be that a proposed juror has made up his mind as to the portion of the body found in Huntington bay being the remains of Charles G-. Kelsey, such juror can be set aside as having made up an opinion upon a disputed fact essential to the guilt of the accused.

There is no such a state of feeling shown by the papers as to authorize us to say that a jury of Suffolk county cannot patiently hear and justly consider and decide upon the evidence which may be adduced before them upon the trial of these defendants.

The order should be affirmed.

Donohue, J., dissented.

Order affimied.