of the party indicted on account of his being an officer of the crown or for some other reason, it must issue as a matter of course, and the court has no discretion to exercise (4 Burr. 2458; 1 East, 303, note d; Hand's Prac. 37; Rex v. Thomas, Mich. Term, 1815), and even where a statute takes away the certiorari it does not extend to the crown (2 Chit. Rep. 136)." 1 Chit. Crim. Law (5th Am. ed.), 378.

Hawkins says (2 Hawk. Pleas Crown, Curwood's ed., p. 401, § 27): "SEC. 27. It hath been adjudged that wherever a certiorari is by law grantable for an indictment the court is bound of right to award it at the instance of the king, because every indictment is the suit of the king, and he has a prerogative of suing it in what court he pleases. But it seems to be agreed that it is left to the discretion of the court either to grant or deny it at the prayer of the defendant."

"The application for the certiorari, whether to a court or judge, except when made by the attorney-general, should be supported by an affidavit stating the grounds for it. As to what grounds are sufficient, see ante, 625; R. v. Inhabitants of Clare, 4 Burr. 2458; R. v. Stannard, 4 T. R. 161; R. v. Burgess, 1 Kenyon, 135; " 1 Burn's Justice (30th ed.), 634.

"And general words in an act taking away the certiorari will not bind the crown unless such an intention is to be collected from other parts of the act. R. v. Allen, 15 East, 333, 342; R. v. Anon, 2 Chitty, 136; R. v. Habe, 5 T. R. 542; R. v. Davies, id. 626; R. v. Cumberland, 6 id. 194;" 1 Burn's Justice (30th ed.), 618; Queen v. Spencer, 9 Ad. & Ell. 485; 36 Eng. C. L. R. 264. "The rule that a statute taking away certiorari does not bind the crown unless named, is not limited to cases where the crown has an actual interest, but extends to all prosecutions in the name of the king." The King v. Boultbee, 4 Ad. & Ell. 498; 31 Eng. C. L. R. 226. See, also, People v. Herkimer, 4 Cow. 346.

Notice of the application need not be given to defendant. People v. Carolin, 115 N. Y. 658; People v. Vail, 6 Abb. N. C. 211.

344. When, and in what cases, indictment may be removed before trial. A criminal action, prosecuted by indictment, may, at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases:

1. From a county court or a city court, to the supreme court held in the same county, for good cause shown;

2. From the supreme court or a county court, or a city court to a term of the supreme court held in another county, on the ground that a fair and impartial trial can not be had in the county or city where the indictment is pending.

In effect, as amended, Jan. 1, 1896; Laws 1895, chap. 880.

5 N. Y. Cr. Rep. 160, note; Abbott's Crim. Brief, 38. See People, ex rel., v. Oyer and Terminer, 101 N. Y. 251; 4 N. Y. Cr. Rep. 75; 3 How. Pr. (N. S.) 418; People v. Squire, 1 N. Y. State Rep. 534; 4 N. Y. Cr. Rep. 444; People v. Whitbeck, 1 Alb. L. J. 195; McFarland's Case, 7 Abb. Pr. (N. S.) 348.

At common law the venue in a criminal case may be changed on application of the prisoner. State v. Albee, 61 N. H. 423; 60 Am. Rep. 325.

An order changing the place of trial in a criminal action on the ground of the disqualification of the judge, is without jurisdiction and void. People v. McGarvey, 56 Cal. 327.

A statute allowing a change of venue is not void as conflicting with the constitutional right to be tried in the county where the prisoner is indicted. 1 Bish. Crim. Proc., 50; Dula v. State, 8 Yerg. 511; Perteet v. People, 70 Ill. 171. But the change can only be made with his consent. State v. Denton, 6 Cold. 539; Wheeler v. State, 24 Wis. 52; Dongan v. State, 30 Ark. 41; Cochrane v. State, 6 Md. 400; Bramlett v. State, 31 Ala. 376; State v. Gut, 13 Minn. 341; Gut v. State, 9 Wall. 35; 1 Bish. Crim. Law, $ 995-998; Cooley Const. Lim. 319, and note." Smith, J., in State v. Albee, 61 N. H. 423; 60 Am. Rep. 325. In People v. Rourke, 11 Abb. N. C. 89, it was held that the facts, that an indictment was found in the court of sessions, raises a constitutional question which has been decided by that court upon a motion to quash; that the law does not prescribe a maximum punishment for the offense charged, and that owing to local excitement there will be difficulty in procuring a fair trial, do not present grounds which authorize its removal to the court of oyer and terminer of the same county for trial.

If a defendant desires a change of place of trial of a criminal action by reason solely of newspaper denunciation, he must, especially where the place of publication of said newspapers is a large city, where the choice of jurors is great and varied, show that this denunciation has had some effect by way of popular expression prejudicial to his rights. People v. Sharp, 5 N. Y. Cr. Rep. 155.

In deciding an application for changing the place of trial, the court should be governed by the facts shown and not by the impressions and conclusions of witnesses and parties. People v. Railroad Co., 4 Park. 602; 16 How. Pr. 106.

The venue will not be changed upon affidavits expressing mere belief that the prisoner cannot obtain a fair and impartial trial in the county where the indictment is found. People v. Bodine, 7 Hill, 147; People v. Sammis, 3 Hun, 560. But the affidavits must set forth the facts and circumstances so that the court may judge whether the application is well founded. People v. Bodine, 7 Hill, 147; People v. Sammis, 3 Hun, 560.

It is a sufficient reason for changing the place of trial that a fair and impartial trial cannot be had in the county in which the venue is laid. People v. Long Island R. Co., 4 Park. 602; 16 How. Pr. 106.

To entitle a defendant to a removal of a criminal action to another county he must make out a clear and convincing case that by reason of popular passion or prejudice he cannot have a fair trial in a county where the venue is laid. People v. Sharp, 5 N. Y. Cr. Rep. 155; People v Sammis, 3 Hun, 560; People v. Vermilyea, 7 Cow. 139; People v. Bodine, 7 Hill, 147. See, also, 5 N. Y. Cr. Rep. 160, note; 25 W. L. Bull. 366.

Ordinarily, where the place of trial is changed in a criminal case, an adjoining county should be selected. People v. Baker, 3 Park. 181; 3 Abb. Pr. 42.

But if the necessity which requires the change calls for it, a more remote county may be designated. People v. Baker, 3 Park. 181; 3 Abb. Pr. 42.

345. If former trial were had, indictment may be removed before the new trial. If one or more trials be had, and a new trial is necessary, either by reason of the discharge of a jury without a verdict, or of the granting of a new trial, the removal may be allowed at any time before the new trial.

§ 346. Application for removal, how made. The appli cation for the order of removal must be made to the supreme court, at a special term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded.

See People v. Baker, 3 Park. 181.

The granting of an order for removal rests in the sound discretion of the court. People v. Sessions, 10 Abb. N. C. 192; 62 How. 415.

Where the questions urged as a ground for removal have already been passed upon by the court having present jurisdiction, an order of removal will not be granted. People v. Rourke, 11 Abb. N. C. 89; distinguished, People v. Clark, 5 N. Y. L. J. 243,

347. Stay of trial, how obtained to enable defendant to apply for removal.- To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment, until the application can be made and decided.

The application should ordinarily be upon notice to the district attorney; and the affidavit should state with precision and accuracy the exact situation of the indictment, the steps already taken in the court from which removal is sought, and the supposed intended action in each court, while the application is being made. People v. Rourke, 11 Abb. N. C. 89.

$348. Decision on application for stay, to be indorsed on papers and filed. When an application for an order to stay the trial is made to the supreme court, it must indorse its decision on the affidavits or other papers presented, and cause them to be immediately filed with the clerk of the court in which the indictment is pending.

$349. If application for stay be denied, no other application can be made. If the application for an order to stay the trial has been made before one judge and denied, a similar application cannot be made to another judge.

350. Violation of last section a misdemeanor and contempt, and order of removal to be vacated.- A violation of the last section is punishable not only as a misdemeanor but as a contempt of the court in which the indictment is pend ing; and that court must vacate ar order of removal made in violation thereof.

See People, ex rel., v. Court of Oyer and Terminer, 101 N. Y. 251; 4 N. Y. Cr. Rep. 75.

351. Order of removal to be filed, and pleadings and proceedings to be transmitted. If the supreme court order the removal of the action, a certified copy of the order for that purpose must be delivered to and filed with the clerk of the court where the indictment is pending, who must thereupon transmit the same, with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court to which the action is removed.

§ 352. Proceedings on removal, if defendant be in custody. If the defendant be in custody, and the removal be into another county than that where the indictment is pending, the order must provide for the removal of the defendant, by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed, and he must be forthwith removed accordingly.

In effect, as amended, Jau. 1, 1896; Laws 1895, chap. 880

353. Order for removal must be filed before a juror is sworn; authority of the court to which indictment is removed. - An order for the removal of the action is of no effect unless a certified copy thereof be filed, as required by section three hundred and fifty-one, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed must proceed to trial and judgment therein.

TITLE VI.

OF THE PROCEEDINGS ON THE INDICTMENT, BEFORE TRIAL.

CHAPTER I. The mode of trial.

II. Formation of the trial jury.

III. Challenging the jury.

CHAPTER I.

THE MODE OF TRIAL.

SECTION 354. Issue of fact defined.

355. How tried.

356. Appearance.

357. Preparation for trial.

354. Issue of fact defined. An issue of fact arises,

1. Upon a plea of not guilty; or

2. Upon a plea of a former conviction or acquittal of the same crime.

355. How tried.- An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into another county, as provided in the second subdivision of section three hundred and forty-four.

In effect, as amended, Jan. 1, 1896; Laws 1895, chap. 880.

The provisions of the sixth amendment to the Federal Constitution, that “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury," etc., relates only to proceedings in the federal courts. People v. Penhollow, 42 Hun, 103; People v. Williams, 35 id. 518; Twitchell v. Com., 7 Wall. 321; Withers v. Buckley, 20 How. (U. S.) 84, 90, 91: Walker v. Sauvinet, 92 U. S. 90; U. S. v. Cruikshank, id. 542; Joseph v. Bilicell, 28 La. Ann. 382; 26 Am. Rep. 102; Prescott v. State, 19 Ohio St. 184; 2 Am. Rep. 388.

Article 1, section 2 of the State Constitution provides:

The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law."

The jury intended is a common-law jury of twelve men. People v. Wynehamer, 13 N. Y. 378; Harris v. People (I11.), 40 Alb. L. J. 28; People v. Clark, 33 Hun, 376.

The word "heretofore," in this clause of the constitution of 1846, means before 1846, and not simply before 1777; People v. Wynehamer, 13 N. Y. 378. A corporation is entitled to a jury wherever an individual is. People, ex rel. Balduin, v. Haws, 37 Barb. 440.