author: Kersten, J.: Kersten, J.:

text:
      (Criminal Court of Cook County.)

    The People of the State of Illinois vs. William J. Davis, Thomas J. Noonan and James E. Cummings.
    (September 30 and
    October 4, 1904.)
    1. Change of Venue From County in Criminal Cases—Time of Application. Where a petition for "a change of venue from the county alleges that there is such a prejudice on the part of the people against the petitioner that he cannot have a fair and impartial trial, and that he did not become aware of such prejudice until September 27, 1904, at some time after 4 p. m„ and notice of the application for a change of venue was served at 9:30 a. m. on the following day, it was held that the application was made in apt time.
    2. Change of Venue)—‘Criminal Cases. Where a defendant in a criminal case cannot have' a fair trial in the county where he resides or where the offense is committed he is entitled to a change of venue.
    3. Same. Nor is such right affected by the fact that such change of venue would greatly increase the expense of trial to the state.
    4. Same—Duty of State. If the state’s attorney on an application for a change of venue believes that no prejudice in fact exists it is his duty to contest the application. If, on the other hand, he believes that a prejudice. does exist he should consent to the making of the change and not charge the court with the responsibility of doing so. '.
    Indictment for manslaughter. Petition for change of venue on the ground of local prejudice. Heard before Judge George Kersten.

      Statement of facts.
    The defendants were indicted for manslaughter. The defendants Noonan and Cummings filed their respective petitions for a change of venue from Cbok county on the ground of the prejudice of the inhabitants. The petition of the defendant Cummings is in the following form:
    To the Honorable George Kersten, Judge of the Criminal
    Court of Cook County:
    Tour petitioner, James E. Cummings, defendant in the above entitled cause, respectfully presents this, his petition, for a change of venue from said Cook county, because of the prejudice of the inhabitants thereof, and represents unto this court and states the following:
    1. That this petitioner now resides, and for more than fifteen years continuously last past has resided in the city of' Chicago, county and state aforesaid; that he has been connected in different capacities with various theatres in said Cook county for a great many years last past.
    2. That on February 23, 1904, your petitioner was indicted' for manslaughter in said above entitled cause conjointly with said defendants Davis and Noonan; and your petitioner refers to said indictment, as aforesaid, and makes said indictment a part hereof; that as appears upon the back of said indictment, one hundred and thirty-eight witnesses were called before said grand jury and gave their said evidence, and, as your petitioner is informed and believes and therefore states the fact to be, said indictment was returned upon the evidence of said one hundred and thirty-eight witnesses, and that most if not all of said witnesses were then and there and now are inhabitants of said Cook county.
    3. That, as will more fully appear from said indictment,, your petitioner is charged therein with the offense of manslaughter, alleged therein to have been committed in said Cook county on December 30, A. D. 1903, by your petitioner with said defendants Davis and Noonan by reason of the death of the person named in said indictment, and that said crime is alleged in said indictment to have been committed by your petitioner and said defendants on said date last aforesaid, by reason of the negligence of your petitioner and said defendants in not providing certain appliances and apparatus, alleged in said indictment to be required by the laws and ordinances of said city of Chicago for the safety of persons then and there on said December 30, A. D. 1903, assembled in a theatre then and there alleged in said indictment to have been located in said city of Chicago, and known as the Iroquois Theatre.
    4. That it is alleged in said indictment that your petitioner on said December 30, A. D. 1903, and before then, was engaged in the business of stage carpentering of the building in which said Iroquois Theatre was located and of said Iroquois Theatre in said city of Chicago.
    5. That it is further alleged in said indictment that a large number of persons were then and there assembled in said building and in said Iroquois Theatre to witness said theatrical performance, to-wit, “Mr. Bluebeard, Jr.,” and that at the time of said performance a certain arc lamp was then and there without due caution and circumspection placed near a certain drapery situated on, in and about the stage of said Iroquois Theatre, and that said drapery was then and there-ignited and set on fire by said arc lamp; and it is further alleged in said indictment that by reason of the fact that said defendants, as alleged in said indictment, had not complied with -said ordinances, said fire was not then and there extinguished and not then and there confined to said stage, and a large amount of fire and smoke then and there poured and went forth from said stage to, towards, against and upon a large number of persons then and there assembled in said building and in said Iroquois Theatre, and against and upon said deceased then and there in said building, and in said Iroquois Theatre, and that by reason of said large amount of fire, smoke, heat, gas and flame, said deceased was then and there asphyxiated, strangled and died.
    6. That it is true that on said December 30, A. D. 1903, a fire occurred on the stage of said Iroquois Theatre; that at said time of said fire, a performance of said “Mr. Bluebeard, Jr.,”’ was being produced at said theatre, and that at said time a large number of persons, consisting of men, women and children, were in said theatre witnessing said performance; that immediately after said fire, it was publicly announced through the papers, and otherwise, throughout said Cook county and throughout the United States, that said fire was a great calamity and that about six hundred lives had been lost by reason .of the occurrences at or about the time of said fire in and ■about said theatre; and that, included among said list of persons, who had lost their lives as aforesaid, was the name of said deceased, mentioned in said indictment.
    7. That after said fire, and on, to-wit, January 7, A. D. 1904, one John E. Traeger, then and there the coroner of said Cook county, held a coroner’s inquest upon the body of ■said deceased mentioned in said indictment, and upon about six hundred other bodies then and there stated to have met their death in the way mentioned in said indictment; that said coroner’s inquest was held in the council chamber of the common council of the city of Chicago; which said council chamber was then and there a large auditorium with many rows of ■seats and benches, and in which said council chamber there was a gallery; that the public were admitted to said inquest, and as your petitioner is informed and believes and so states the fact to be, many thousands of persons, inhabitants of said Cook county, attended said inquest and heard the testimony there given j that upon said inquest, as stated by said coroner, between two and three hundred witnesses were subpoenaed to testify, and more than one hundred and seventy witnesses were actually called by said coroner and did then and there testify before the coroner’s jury; that said inquest covered a period of, to-wit, twenty days, and that the testimony so taken was published verbatim or in substance, in all the daily newspapers published in said county.
    8. That said Iroquois Theatre, on December 30, 1903, was a new structure, located at 79 and 81 Randolph street, in said city of Chicago, of beautiful design, and opened to the public for the first time on, to-wit, November 23, A. D. 1903, and 'prior to such opening was extensively advertised as a new theatre about to be opened, and the residents and inhabitants of said Cook county were generally aware, as was then and there publicly stated and announced throughout said Cook • county by the press, of the opening of said theatre, and the opening of said theatre was a matter of public interest to the inhabitants of said Cook county.
    9. That on said December 30, A. D. 1903, and for many months prior thereto and continuously thereafter up to and including the present time, there were and now are duly published in the English language throughout said Cook county, each day, certain newspapers which had the respective circulations among the inhabitants of said Cook county and were respectively read by the number of inhabitants of said Cook county, as follows, to-wit:
    Name of Paper. Circulation. No. of Readers.
    Chicago Daily News......... ...... 300,000 600,000
    Chicago Record Herald...... ...... 150,000 300,000
    Chicago Tribune............ ...... 150,000 300,000
    Chicago Inter- Ocean........ ..... 60,000 120,000
    Chicago Chronicle.......... ...... 50,000 100,000
    American .................. ...... 200,000 400,000
    Examiner ................. ...... 120,000 240,000
    Chicago Evening Post....... ...... 16,000 32,000
    Chicago Evening Journal.... ...... 100,000 200,000
    10. That immediately after said fire, the mayor of the city of Chicago issued a public proclamation, with reference thereto, deploring the calamity of said fire and directing that a day should be set apart for mourning for the dead hereinbefore referred to, and that business throughout said city should be suspended; that such proclamation was recognized and "con- • curred in by the inhabitants of said Cook county, and immediately thereafter all business in said city of Chicago, in said Cook county, was suspended and such proclamation was generally recognized and observed; and the people of said city of Chicago immediately entered into a state of mourning; and said fire and the death of the great number of people alleged to have been occasioned by said fire was the paramount and all-absorbing topic of conversation by the inhabitants of said Cook county; and the public press of said Cook county devoted many editions of their respective newspapers to publishing the alleged details of said fire for many days, weeks and months thereafter; and it was publicly iterated and reiterated in said public press that said fire was occasioned and the great loss of life alleged to have been attendant thereon was alleged to have been occasioned by the negligence of your petitioner and other parties alleged to have been connected with the management and ownership of said building and said Iroquois Theatre.
    11. That immediately after said fire the hospitals and morgues in said Cook county, as was alleged in the public press of said Cook county and believed by the inhabitants of said Cook county, were filled with the dying and dead alleged to have come from said theatre building and said theatre, and many tens of thousands of people congregated for days after said fire at said morgues and hospitals, and many other thousands of people congregated at the newspaper offices in said Cook county and at the police and fire headquarters in said Cook county, and the inhabitants of said Cook county were wrought up to a high pitch of excitement, lasting many days, weeks and months after said December 30, A. D. 1903, and a great and popular prejudice was then created in the minds of the inhabitants of said Cook county against your petitioner and against other persons connected with the said Iroquois Theatre and said building wherein said theatre was located, and that public sentiment became so great and strong that the mayor, the building commissioner and the fire marshal of said city of Chicago, together with others, were held to the grand jury of said Cook county by said coroner’s jury, and that thereafter, and on said February 23, A. D. 1904, said building commissioner and one of his chief assistants were indicted by the grand jury of said Cook county for alleged culpable negligence in their conduct in connection with said building,
    12. That a great number of civil suits have been instituted and are now pending against the Iroquois Theatre Company and persons connected therewith, and against several public officials charged with negligence causing said fire, and the institution of said suits has been greatly discussed and heralded throughout said Cook county as a matter of public interest.
    13. That immediately after said fire, there was formed in said city of Chicago an association or corporation, publicly known and designated as the “Iroquois Memorial Association;” that said association has been continuously publishing and circulating great quantities of literature, in which they have directed the attention of the inhabitants of said Cook county to your petitioner and to the other persons alleged to have been connected with said theatre and said building as aforesaid, and in which they have charged your petitioner and said other persons with gross negligence, carelessness and wilful intentions, and in which said literature they have claimed that your petitioner and others were guilty of occasioning the great loss of life alleged to have resulted by reason of said fire as aforesaid; that ministers from their pulpits in said county have publicly denounced the persons alleged to have been connected with the management of said theatre and said building as aforesaid, including your petitioner; that school teachers throughout said Cook county have frequently since said fire formed societies in and among the children attending their respective schools, for the purpose of constantly creating, and such associations do constantly create, a prejudice in the minds of said children and in the minds of the parents of said children, inhabitants of said Cook county as -aforesaid, against persons alleged to have been connected with the management of said theatre and said building as aforesaid, including your petitioner; that your petitioner, together with the persons alleged to have been connected with the management of said theatre and theatre building, have frequently been referred to, in the public press of said Cook county, as murderers and felons, and said public press of said Cook county has frequently demanded that your petitioner be punished for the alleged death of said persons as aforesaid; that said public press has frequently referred to the fact of the alleged violations of the city ordinances of said city of Chicago, pretendedly set forth in said indictment, and has directed the attention of the inhabitants of said Cook county to such alleged violations, and have stated, on their own responsibility, that such violations existed, and that such viola-, tions were criminal, and that said theatre was not constructed, maintained or operated according to the ordinances of said city of Chicago.
    14. That on said December 30, A. D. 1903, there were from twenty-five or thirty operating theatres in said city of CM-, cago, and that immediately after said fire, as aforesaid, and on, to-wit, January 1, 1904, Honorable Carter H. Harrison, then and there the mayor of said city of Chicago, ordered each and every one of said theatres to shut down and remain closed, and said theatres did for a long time thereafter shut down and remain closed; that prior to said December 30, A. D. 1903, more than twenty thousand persons were in the habit of visiting said theatres daily, and that more than, to-'wit, ninety per cent, of said people so visiting said theatres were and now are inhabitants of said Cook county; and that the mayor of said city of Chicago, in ordering said theatres to close and in closing said theatres as aforesaid, publicly announced, and such announcement was circulated throughout said Cook county in the public press, that said theatres were closed and shut down for the reason that said theatres were violating the ordinances of said city of Chicago, and said mayor and other officials of said city of Chicago then and there directed the attention of the inhabitants of said Cook county to the alleged violations of said ordinances by the said persons alleged to be connected with the management of said Iroquois Theatre and said building as aforesaid; that by reason of such facts, the attention of many hundreds of thousands of inhabitants of said Cook county was directed to the alleged violations of the ordinances of said city of Chicago set forth in said indictment.
    15. Tour petitioner particularly refers to and herewith brings into court several editions of said newspapers herein-before referred to which were printed, published and circulated- throughout said Cook county, between the dates of December 30, A. D. 1903, and January 29, A. D. 1904, both inclusive, and particularly refers to each and every part of said newspaper and makes such parts of said newspapers a part of this, his said petition, for a change of venue with the same force and effect as if your petitioner had set forth said parts of said newspapers in this, his said petition, referring to said Iroquois fire and your petitioner and the alleged owners, managers and operators of said theatre and said theatre building, ■ and to such parts of said newspapers referring to any of the facts hereinbefore stated.
    16. That said prejudice had apparently died out at the time of the indictment on February 23, A. D. 1904, and until September 19, A. D. 1904, and upon said latter date said Iroquois Theatre was again opened for amusements, whereupon the public protests against the opening of said Iroquois Theatre by the press of said Cook county and by ministers, school teachers, school children and by others, recalled the horrors of said fire and aroused the passion and revived the prejudice of the inhabitants of said Cook county against those connected with ■ said theatre, including the petitioner.
    That the reopening of the Iroquois Theatre and the agitation attendant thereon were given wide publicity throughout said Cook county; that immediately upon said reopening and thereafter up to and including the present time, the.occurrence of said fire and the great loss of life attendant thereon, and the surrounding fants and circumstances have been again agitated and republished, and brought again to the attention and knowledge of the inhabitants of said Cook county, and in addition thereto the state’s attorney of said Cook county at certain public gatherings, including relatives of those whose lives were so lost, has been charged with dereliction in not convicting said defendants herein, and that a great prejudice against said defendants has again been occasioned and is now-in the minds of the inhabitants of said Cook county.
    17. That your petitioner particularly refers to and herewith brings into court several editions of said newspapers hereinbefore referred to, which were printed, published and circulated throughout said Cook county on September 20, A. D. 1904, the day after the re-opening of said Iroquois Theatre and building as aforesaid, and the edition of the Chicago Inter-Ocean of Sunday, September 25, A. D. 1904, and particularly refers to each and every part of said newspapers and makes said parts of said newspapers a part of this' your petitioner’s said petition for a change of venue, with the same force and effect as if your petitioner had set forth such parts of said newspapers in said petition referring to the Iroquois fire and to the prosecution of your petitioner and the other defendants herein and the re-opening of said Iroquois Theatre as aforesaid.
    18. Tour petitioner further states that this petition is made at the first opportuniy since the knowledge of the existing prejudice of said inhabitants of said Cook county came to this petitioner, and that knowledge of the existence of said prejudice first came to this petitioner on the 27th day of September, A. D. 1904; that at the time petitioner was indicted as aforesaid, said publications in said newspapers practically ceased and public excitement was apparently over, and that after petitioner was indicted he believed that without any renewed agitation of the matters and things herein set forth in connection with said fire he could, without prejudice to his rights to obtain-a fair and impartial trial, submit to a trial in said Cook county; that although said defendants were indicted on said February 23, A. B. 1904, the state’s attorney of said county did not as against petitioner move to place ■said case on trial until September 26, A. D. 1904, and this petitioner or his counsel had no notice whatever of said move or that said ease was to be called for trial, until September 26, A. D. 1904; that thereupon petitioner, by himself, numerous friends and associates at once instituted extensive inquiries among the inhabitants and citizens of said Cook county for the purpose of ascertaining whether such a prejudice now exists against said petitioner among said inhabitants of said Cook county as to prevent petitioner from obtaining a fair and impartial trial in said Cook county, and your petitioner further avers as the result of such inquiries as aforesaid he, for the first time since the indictment herein believed on September 27, A. D. 1904, that such a prejudice exists against him among said inhabitants of said Cook county that he cannot in said county obtain a fair and impartial trial, and that knowledge of such prejudice first came to petitioner on said September 27, A. D. 1904.
    Wherefore, the premises considered, your petitioner prays for a change of venue from the criminal court of said Cook ■county.
    And your petitioner will ever pray.
    James E. Cummings.
    "State of Illinois, | ■County of Cook, i SS'
    James E. Cummings, being first duly sworn, upon oath deposes and says that he has read the above and foregoing petition by him subscribed, and knows the contents thereof, .and that the contents of said petition, and the allegations and facts therein stated, are true in substance and in fact.
    James E. Cummings.
    Subscribed and sworn to before me, a notary public of Cook county, Ill., on this 28th day of September, A. D. 1904.
    [Seal.] Eugene A. Moran,
    Notary Public, Cook County, Illinois.
    A similar petition was filed by Thomas J. Noonan.
    Many thousands of affidavits were filed to show the existence of prejudice. No counter affidavits were filed by the state. The state finally conceded that prejudice did in fact exist and withdrew its objection to the granting of the change of venue. The affidavits were in the following form:
    --, being first duly sworn, upon oath deposes and says that he now is and for more than a year last past has been a resident, inhabitant and citizen of said Cook county, in said state of Illinois, and that he now resides at -in the city of Chicago, in the county and state aforesaid, and that his occupation is that of --■.
    That he is not of ltin or counsel to any or either of the defendants herein; that said defendants herein were indicted in the criminal court of said Cook county on February 23, A. D. 1904, for manslaughter alleged in said indictment to have been occasioned by a fire which occurred on December 30, A. D. 1903, at a place in said city of Chicago known and designated as the Iroquois Theatre.
    That immediately after said fire it was universally reported and the inhabitants of said Cook county believed that a great number, to-wit, more than six hundred lives were lost at said fire; that by reason of said great numbers of deaths and the statements contained in the public press which were circulated in said Cook county, and by reason of the indictment herein, and of the indictment of divers public officials of said city of Chicago because of the facts and circumstances arising out of said fire, and by reason of the closing of all the theatres in the said city of Chicago, on, to-wit, January 2, A. D. 1904, and the same being kept closed for several months by order of the mayor of said city and by reason of statements made by members of certain memorial associations, which statements were printed, published and circulated throughout said Cook county, a very great and popular prejudice arose in the minds of the inhabitants of said Cook county against the defendants herein and against other persons connected with said Iroquois Theatre and against said theatre, and that by reason of all such facts a great popular prejudice and clamor arose in the minds of the inhabitants of said Cook county against said defendants herein.
    The said prejudice had apparently died out at the time of the indictment on February 23, A. D. 1904, and until September 19, A. D. 1904, and upon said latter date said Iroquois Theatre was again opened for amusements, whereupon the-public protests against the opening of said Iroquois Theatre by the press of said Cook county and by ministers, school teachers, school children and by others, recalled the horrors-of said fire and aroused the passion and revived the prejudice of the inhabitants of said Cook county against those connected with said theatre including the defendants herein.
    That the reopening- of the Iroquois Theatre and the agitation attendant thereon were give wide publicity throughout said Cook county; that immediately upon said reopening and thereafter up to and including the present time, the occurrence of said fire and the great loss of life attendant thereon, and the surrounding facts and circumstances have been again agitated and republished, and brought again to the attention and knowledge of the inhabitants of said Cook county, and in addition thereto the state’s attorney of said Cook county at certain public gatherings, including relatives of those whose lives were so lost, has been charged with dereliction in not convicting said defendants herein, and that a great prejudice against said defendants has again been occasioned and is now in the minds of the inhabitants of said Cook county, and this affiant believes and says that said defendants, Noonan and Cummings, will not and cannot receive a fair and impartial trial in the criminal court of said Cook county in which the case herein is pending, because the inhabitants of said Cook county are prejudiced against said Noonan and Cummings, and each of them.
    And further affiant saith not.
    The motion for a change of venue was thereupon granted and the case was transferred to Peoria county. The court rendered two opinions: one on September 30, 1904, and the other on October 4, 1904.

      Charles S. Heneen, state’s attorney, A. C. Barnes and E. C. Bindley, assistant state’s attorneys for the people.

      Bevy Mayer, Alfred 8. Austrian, Moritz Rosenthal, W. J. Hynes, E. C. Higgins and Howard 0. Sprogle, for the defendants.
   Opinion rendered September 30th, A. D. 1904.

Kersten, J.:

This is a motion on the part of the state to deny the petition for a change of venue on the ground that it is not made in apt time. That is the sole question under consideration, and not the question, shall a change of venue be granted even at this time? Much of the argument has been unnecessarily addressed to the latter proposition. The question is, was the petition presented or filed in apt time ? The state has denied that the application for change of venue was made at the earliest opportunity, and that the state’s attorney’s office did not receive the requisite legal notice, and that therefore the petition should be denied.

The state has abandoned the latter proposition, thus leaving the first open to be passed upon.

The petition recites that there exists at the present time such a prejudice on the part of the people of this county against the petitioner that he fears that he cannot have a fair and impartial trial in this county and that he did not become aware of said prejudices of the people of said county .against him until September 27th, 1904, at some time after four p. m. It has been shown that notice was served on the state’s attorney about 9:30 a. m. on the next day, that the petitioner was about to apply for a change of venue.

If it is true that the petitioner had no knowledge of the existing prejudice against him on the part of the people of this county until the 27th of September, 1904, at four p. m., the latter having served notice at 9:30 a. m. on the next day upon the state’s attorney of his intention to pray for a change of venue, then he has fulfilled, I think, the requirements of the statute.

The court has no other legal evidence upon this proposition than that which is disclosed by the petition itself. The petition technically fulfills the requirements of the law and shows prima facie that there exists such a prejudice on the part of the people of this county against the petitioner that he cannot receive a fair and impartial trial in this county and that he did not become aware of this prejudice until the evening of September 27th, 1904. It is also shown that on. the next morning at about 9:30 o ’clock he served notice on the state ’s' attorney of his intention to pray for a change of venue.

The facts stand uncontradicted, and therefore must be accepted as true.

The motion to dismiss the petition is denied.

Opinion rendered October 4, 1904:

Kersten, J.:

Before granting this change of venue, I desire to say this: This is a very important matter, much more important than any matter that has arisen in this court for a long time. Under the law, if a defendant cannot have a fair trial in the county where he resides or where the offense was committed, he is entitled to a change of venue. There is no question- in regard to that. When these defendants filed their petition asking for a change of venue it was contested by the state, it was bitterly contested, I might say up to this morning. Suddenly the state ceases to contest this application for a change of venue, first oh the ground of expense, secondly on the ground that the state did not know just what number of affidavits the defendants would bring forward.

Now, so far as the expense is concerned, the matter is so important that no expense should prohibit the state in any way, shape or manner from contesting this petition for a change of venue if the state is of the opinion that there is not such prejudice which would justify this court in granting a change of venue.

Me. Barnes : And if it can get the money to do so.

The Court : The money should be there.

Mr. Barnes : But it is not.

The Court: That is absolutely no excuse.

Mr. Barnes : Well, it is not there.

The Court : I will say to the state that the reason I make-these remarks is that I am being put in a false position in granting this change of venue, if I do grant it, which of course, the petition not being contested, I am compelled to do. There has been some newspaper talk, I do not know whether it came from the state’s attorney’s office or not, which in a manner brought the burden of granting this change of venue-upon this court. Now, I wish to say that I am acting in this matter as I will in every matter that comes before me, strictly in accordance with the law, and I want to do justice in this case, as I will in every case, as I see it. If I am mistaken about any proposition, that is a different question. But as I said before, if the state is of the opinion that there is no prejudice existing in this county it is the duty of the state to contest this petition, it was the duty of the state to file counter affidavits, and not say, “well, the court has ruled against us on the preliminary petition, and if you have all these affidavits we won’t contest it because the court will probably grant the change of venue anyway.” In doing that .the office of the state’s attorney is not acting in good faith.

Mr. Barnes: Has the state’s attorney said that?

The Court: Not in so many words. * * *

The Court: I don’t care to say anything more on that .subject. It is sufficient to say that already cranks have commenced to write letters, one of which I received this morning, which was threatening in the extreme, and stated that if I granted a change of venue in this case I might look for a vigilance committee or something of that kind. Not only ■could things of that kind be averted, if the state’s attorney would come right out and say there is no prejudice in this ■county and we will contest the change, or say, “well, gentlemen, it seems to me that there is prejudice in this county •and we will not contest it.” That would be the manly way of treating a matter of this kind.

Mr. Bindley: It was not until after the affidavits were presented that we could have any conception of the prejudice which they say exists.

The Court : There is no rule of law compelling any living man to produce his testimony beforehand. This is an issue ■of fact that is tried in the same manner as any other issue, and no court would have the right to say to the plaintiff, “Mr. Plaintiff, I want to know what kind of evidence you have on which you base your claim; I want to know how many witnesses you have whom you intend to introduce; I want to know the nature of the evidence on which you will depend, ■any more than the court would have the right to ask the defendant similar questions. It is an issue of fact that this •court and any other court would be bound to hear whatever evidence, proper legal evidence, either litigant would bring forth.

Mr. Bindley: Wasn’t it announced by the state’s attorney most promptly, when the number of affidavits was stated, that he believed too that the change should be granted?

Mr. Mayer: The state’s attorney in his argument stated to the court that every county in the state was prejudiced, and I advanced that as one of the reasons why a change of venue should be granted.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
      (Criminal Court of Cook County.)

    The People of the State of Illinois vs. William J. Davis.
    (June 14, 1906.)
    1. Change of Venue—Local Prejudice. A change of venue will seldom he granted from a large city where many men are eligible for jury service; but where the defense presents over 12,000 affidavits as to the existence of prejudice, and the state about 4,000 counter affidavits, the change of venue must be granted.
    2. Same—Application for—Mere Number of Affidavits. Mere numbers alone of affidavits that the defendant cannot receive a fair trial in the county do not govern the granting of the change of venue, but the character and reputation of the persons making the affidavits will be considered.
    3. Same—Character and Number of Affidavits. Where vast numbers of affidavits of prejudice are presented, among which are those of large numbers of prominent men, the court will grant the change of venue, and such a record is conclusive upon the court that prejudice still exists although the catastrophe for which the defendant was indicted occurred a year or more previous.
    Indictment for manslaughter. Motion for change of venue from Cook county, Illinois, on the ground of local prejudice. P. G. D. No. 76,382. Heard before Judge Ben. M. Smith.
    Statement of facts.
    William J. Davis, as manager of the Iroquois Theatre, was indicted on February 25, 1904, for manslaughter as the result of a fire in the Iroquois Theatre building, in the city of Chicago, on December 30, 1903, by which several hundred persons lost their lives, due, it was alleged, to the failure of the owners and managers of the theatre building to comply with the building ordinances of the city of Chicago, etc. This indictment was quashed by Judge Kersten of the criminal court of Cook county on February 9, 1905. Subsequently on March 4, 1905, a second indictment was returned against Will. J. Davis, charging him with manslaughter as the result of the same fire. A petition for a change of venue from Cook county on account of the prejudice of the inhabitants was filed on March 10, 1905, and a motion to quash the second indictment was filed. The motion to quash was heard in June, 1905, and on January 23, 1906, the motion to quash was denied as to certain of the counts and granted as to others. The motion for a change of venue was heard by the criminal court -in June, 1906. The petition for a change of venue alleged that Will J. Davis had for many years been connected with the management of various theatres in the city of Chicago, and that he was by name and reputation well known to a large part of the inhabitants of the city of Chicago and Cook county; that the Iroquois Theatre in Chicago was on November 23, 1903, opened to the public for the first time after much advertisement and that said opening attracted great public attention; that on the afternoon of December 30, 1903, a fire occurred in the Iroquois Theatre during the course of the matinee performance, and as a result of this fire five hundred and ninety-seven men, women qnd children lost their lives; that after said fire the hospitals and Morgues in Cook county were filled with the dead and dying alleged to have come from said theatre building, and that many tens of thousands of people congregated for days about the hospitals, etc., inquiring for persons supposed to have died or been injured in the fire, and that as a result the inhabitants of Cook county were wrought up to a high pitch of excitement; that immediately after the fire the mayor of Chicago issued a proclamation with reference to and directing that a day be set apart for mourning and asking that business be suspended, and that such proclamation was generally observed ; that the fire and its consequences was then the paramount topic of conversation by the inhabitants of Cook county; that immediately after the fire on January 1, 1904, the mayor of Chicago ordered closed all the twenty-five to thirty theatres in the city of Chicago, for the reason that all of the theatres were violating the ordinances of the city of Chicago; that immediately after the fire there was formed an association designated as the “Iroquois Memorial Association,” which, had been publishing a great amount of literature calling the attention .of the inhabitants of Cook county to the petitioner, and charging the petitioner and other persons with gross negligence, carelessness and wilful intentions and claiming that the petitioner was guilty of causing the great loss of life by reason of the fire and that similar charges were made by ministers from their pulpits, and by school teachers to their pupils; that on January 7, 1904, the coroner of Cook county held a coroner’s inquest over the victims of the fire; that the inquest was held in the city council chamber of Chicago, and that many thousands of inhabitants of Cook county attended said inquest and heard the testimony, and that between two and three hundred witnesses were called to testify at said inquest and that one hundred and seventy witnesses actually did testify; that the inquest covered a period of twenty days and the testimony was published verbatim or in substance in all the daily newspapers in Chicago; that the daily newspapers of Chicago had enormous circulation and reached amounting to almost one million five hundred thousand copies per day, and that immediately after the fire their newspapers devoted many editions to publishing accounts of occurrences at the fire, and alleged that the loss of life was occasioned by the negligence of the petitioner; that the newspapers alleged in great detail heart-rending occurrences at the fire- and the various defects alleged to exist in the theatre building and its management and construction; that, the newspapers published that the petitioner with others,, including the fire inspector and building inspector and the mayor of the city of Chicago, were responsible for the hundreds of deaths from the fire; and published statements such as that “nearly all exits save the main doors were locked,” etc., and that their statements were published and printed in large bold type and head-lines upon the first pages; and that large pictures were published showing horrible scenes at the fire; that lists of names of the injured and dead were published ; that it was published that the laws and building ordinances of the city of Chicago were violated by the petitioner in the construction and operation of the theatre; that on De"cember 31, 1903, certain employes of the theatre were placed under arrest, and that the news of the arrests was heralded and published in the newspapers; that all these things incited the public mind and prejudice against the petitioner; that a -coroner’s jury was summoned on January 1, 1904, to investigate into the catastrophe, and that its proceedings were published at length in the newspapers; that on January 2, 1904, the petitioner with others was arrested for manslaughter and great publicity was given to the arrest; that other arrests were made; that great numbers of damage suits were instituted against the petitioner and others arising out of the fire; that many pictures of the injured were published in the newspapers ; that from January 8, 1904, almost continuously certain newspapers continued to publish statements charging the petitioner as the cause of the catastrophe; that on January 25, 1904, the coroner’s jury held eight persons to the grand jury, including the petitioner, the mayor, building commissioner, .and chief of the fire department of the city of Chicago, which was published at length in the newspapers; that on Febru. ary 25, 1904, the petitioner was indicted together with others for manslaughter as the result of the fire; that all the time the newspapers printed articles derogatory to the petitioner, which incited in the minds of the inhabitants of Cook county great prejudice against the petitioner; that no steps were taken in the cases until September 28, 1904; that in the meantime the Iroquois Memorial Association circulated large numbers of articles and letters to the inhabitants of Cook county, asking for contributions of funds to assist in the prosecution of the petitioner; that in the meantime many articles and pictures were published in the papers tending to excite the public mind against the petitioner. That on October 4, 1904, a change of venue was granted to two co-defendants with petitioner; that on October 4, 1904, petitioner moved to quash the indictment against him and the motion to quash was argued on November 1 and 2, 1904; that on February 9, 1905, the indictment was quashed by Judge Kersten; that immediately after the quashing of the indictment a grand jury was impanelled on February 20, 1905, and on March 4, 1905, a second indictment was returned charging the petitioner with manslaughter as the result of deaths due to the fire; that several hundred damage suits (in one day as many as sixty, asking damages amounting to $500,000) were started against petitioner, and the institution of such suits was given great publicity by the press of the city of Chicago; that 600 persons lost their lives in the fire, of whom over 500 resided in Chicago, in Cook County. The petitioner added as exhibits to his petition files of the daily newspapers of Chicago covering the period since the fire, with all references thereto marked.
    On June, 1906, a supplemental petition was filed by the petitioner referring to and making a part thereof all of the averments of the petition for a change of venue filed March 10, 1905, and further alleging that there had existed continually since December 30,1903, and then existed a great prejudice against petitioner.
    Upon the hearing of the motion the petitioner filed 12,150 affidavits signed by men in all walks of life and by large numbers of men prominent in their professions and business and well known reputation; such affidavits were in the following form:
    --, of lawful age, being first duly sworn, upon oath deposes and says:
    1. That he now is and for many years continuously last past (beginning at a period long before the Iroquois fire hereinafter referred to) has been a resident and citizen of the city of Chicago, in said county and state, and now resides at ---in said city, and his occupation is that of-and his place of business is at-street in the said city.
    2. That he is not of kin or counsel to the defendant herein.
    3. That this affiant is well acquainted and familiar with the occurrence of the fire at the Iroquois Theatre, in said city, on December 30, 1903; and the subsequent developments growing out of such fire; that since said fire, up to and including the present time, this affiant has frequently discussed with and heard discussed, among many of the inhabitants of said county, the occurrences connected with and growing out of said fire, including the facts and circumstances relating to the great loss of life in and by reason of said fire, the investigation of the causes of the loss of life by the coroner’s jury in said county, the arrest of said defendant and other persons connected with said Iroquois Theatre, the hearing before and the binding over to said criminal court by the coroner of said county of said defendant herein and others, the closing following said fire, of the theatres in said city by order of the mayor thereof, the petition for a writ of habeas corpus by the mayor of said city, who on account of said fire had been bound over by said coroner to the grand jury of said county; the discharge of said mayor under said writ, the indictment of the building commissioner of said city and his assistant, and of the said defendant herein and one Thomas J. Noonan and one James E. Cummings, the quashing of said indictment agaihst said Noonan, Cummings and said defendant and the re-indictment of said defendant, being the present indictment; and has read and seen in the Chicago daily papers, a great many articles, cartoons, and pictures, detailing and portraying the said fire and said loss of life, the' progress of said investigations and prosecution, and the incidents connected therewith, and other facts and circumstances relating to said subject-matter, and to the Iroquois Memorial' Association (composed of members of the families that suffered loss of life in said fire), and detailing also statements purporting to emanate from persons connected with said association, and reciting also the facts and circumstances connected with the re-opening of said theatre.
    4. That this affiant has frequently up to the present time, talked with many persons, inhabitants of said county, regarding the various matters aforesaid and concerning the guilt or innocence of those alleged to have been in the management and control of said theatre, including said defendant, and that from said publications as aforesaid, and from said facts and circumstances hereinbefore detailed, and from said conversations, this affiant verily believes and states the fact to be that great prejudice against said defendant has been occasioned, and is now prevalent in the minds of the inhabitants. of said Cook county, and this affiant verily believes and states the fact to be that said defendant will not and cannot possibly receive a fair and impartial trial in the above entitled cause of People v. Davis, now pending in the criminal court of said Cook county, because the inhabitants of said Cook county are now prejudiced against him, Said Davis.
    And further affiant saith not.
    The state in opposition to the motion filed about 4,000 affidavits in the following form:
    --, being first duly sworn, upon oath deposes and says:
    That he now is and for many years continuously last past has been a resident, inhabitant and citizen of the city.of Chicago, in said county of Cook, in said state, and now resides at-in said city, and his occupation is that of- and his place of business is at-street in the said city. That this affiant has knowledge of and is generally familiar with the occurrence of the fire at the Iroquois Theatre, in said city, on December 30, 1903; and the subsequent developments growing out of such fire; that since said fire, this affiant has frequently discussed with and heard discussed, among different inhabitants of said Cook county, occurrences connected with and growing out of said fire, including the facts and" circumstances relating to the loss of about 600 lives in and from said fire, and the indictment of said defendant, William J. Davis, and has seen and read newspaper accounts of said fire.
    That this affiant has very frequently talked with different inhabitants of said Cook county, regarding said fire and concerning the guilt or innocence of those alleged to have been in the management and control of said Iroquois Theatre at the time of said fire, including said defendant, and that from said publications as aforesaid, and from said facts and circumstances hereinbefore detailed, and from said, talks had with said persons this affiant states that in his opinion there exists now no prejudice on the part of the inhabitants of Cook county, Illinois, against William J. Davis sufficient to prevent him from receiving a fair and impartial trial in the above entitled cause of People v. Davis, now pending in the criminal court of said Cook county.
    And further affiant saith not.

      Moran, Mayer & Meyer for petitioner. (Levy Mayer and Alfred S. Austrian, of counsel.)
    1. The petitioner is-entitled to a fair and impartial trial, (a) By constitution and statutes. Sec. 9, art. 2, constitution of Illinois; secs. 18, 22, ch. 146, Revised Statutes of Illinois; Clark v. People, 1 Scam. 117, 120; Riggen v. Commonwealth, 3 Bush (66 Ky.) 494. (b) At common law. 4 Encl. Pl. & Pr. 397; State v. Burris, 4 Harr. (Del.) 582.
    2. The right to a fair and impartial trial should not be affected by suggestions or arguments of inconvenience or delay. Wormley v. Commonwealth, 10 Gratt. (Va.) 658, 662; 4 Encl. Pl. & Pr. 397, note 4.
    3. The right to a change of venue must be liberally interpreted. Packwood v. State, 24 Ore. 261, 33 Pac. 674; Price v. State, 8 Gill (Md.) 296, 302; Gardner v. State, 25 Md. 146, 152; 4 Encl. Pl. & Pr. 380, 381. And in case of a doubt it is best to resolve it in favor of the application for a change of venue. State v. Gray, 113 La. 671, 37 So. 597.
    4. There are many strong illustrations where the evidence shows that there were reasonable grounds to believe that the defendant could not'have a fair trial even though there were a large number of negative affidavits showing that he could have a fair trial. Alarcon v. State (Tex. Cr. App.), 83 S. W. 1115; Seams v. State, 84 Ala. 410, 4 So. 521; Johnson v. Commonwealth, 82 Ky. 116; Posey v. State, 73 Ala. 490, 494; People v. Long Island R. Co., 4 Parker’s Crim. Repts. 602; Commonwealth v. Ronemus, 205 Pa. 420, 54 Atl. 1095; State v. Billings, 77 Iowa, 417, 423, 47 N. W. 456. Notoriety of a case and aroused feelings of the people are to be considered. Alarcon v. State (Tex. Cr. App.), 83 S. W. 1115; Richmond v. State, 16 Neb. 388, 20 N. W. 282. The passions only slumber and may break out again at any moment. Commonwealth v. Ronemus, 205 Pa. 420, 54 Atl. 1095. “When a proper case is presented, to refuse such a change of the place of trial would be mob law inside instead of outside the court house.” Garcia v. State, 34 Fla. 311, 16 So. 223, 228.
    5. Affidavits of leading citizens have great weight, and counter-affidavits which simply say that there is no prejudice that will prevent a fair and impartial trial and do not controvert the particular facts alleged in the affidavits for the change are of little avail. Richmond v. State, 16 Neb. 388, 20 N. W. 282; Hickmam v. People, 137 Ill. 75; State v. Billings, 77 Iowa, 417, 423, 42 N. W. 456.

      6. The overwhelming number of affidavits filed on behalf of the petitioner entitles him to the change of venue from Cook county. The petitioner files 12,150 affidavits for the change while the state files only about 4,000 counter-affidavits.

      John J. Healy, state’s attorney, and Harry Olsen, assistant state’s attorney, for the people.
    Mere numbers of affidavits should not control. MacDonald . v. People, 49 Ill. App. 357.
   Smith, J.:

The court has given this matter very careful consideration. The question now before the court seems to be whether or not such prejudice now exists in the minds of the inhabitants of this county that this defendant cannot get a fair and impartial trial in this county. And in the consideration of that •question it is brought to the attention of the court that on a former indictment against this defendant for the same offense a change of venue was allowed to another county with, as I understand, no opposition; that it has been substantially conceded by the state, up to about a year ago, that there was such a prejudice that the defendant would be entitled to a change of venue. Therefore, about the only question that is left to the court is whether or not during the past year there has been a change so that at the present time any feeling of prejudice against this defendant has so abated that he could now safely go to trial in this county.

It would seem that there are very few occasions that in a great city like this a man would be entitled to a change of venue. So far as we can look forward and anticipate cases it is very seldom that circumstances arise that would make a situation in a great cosmopolitan city where a man would not get a fair and impartial trial. But it does seem on the other hand that if there were a case, a case similar to this would entitle a man to a change of venue. In a horrible catastrophe such as this was, where some six hundred lives were lost, I undertake to say that there is hardly a neighborhood in the city of Chicago and Cook county but what has some victim of that terrible fire, and it would seem to the court that a jury from this county would be influenced more or less, many of them, by the fact that their neighbors or their friends were interested in the outcome of this suit. However that may be, the court is confronted with a record here that seems to the court to allow but one conclusion. The defense has presented over twelve thousand affidavits in this case as to the prejudice, and the state something like four thousand. Now, while we all concede that it is not a matter of numbers, because if it were numbers that govern that would simply mean a contest in many counties between opposing factions until you get a majority of the people of an entire county who would testify one way or the other, but in this case there are over twelve thousand affidavits presented to the court; among them are hundreds and thousands of men who stand high, foremost citizens of the state, intelligent, the peers of any, men high in their efforts to enforce law and order, and it is difficult for the court to say that these men, prominent, influential citizens of Chicago, who come into this court and under oath testify, for that is substantially what they do, that this defendant cannot receive a fair and impartial trial on account of the prejudice of the inhabitants of this county—they must be entitled to some credence. Such men as Judge Payne, Dr. Emil Hirsch, Dr. Frank Billings, and hundreds of others, men who ought to know, men who it would seem would know what the situation is in this county, the court will hardly assume that these men are testifying to something that they know nothing about, or wilfully testifying to something that is not true. And with the testimony of so many men of influence and standing, so high in the community, it leaves the ■court nothing else to do on this record but grant a change of venue. Men of that character and in such vast numbers, puts the court in a position that this community is in such condition and frame of mind that their testimony cannot be ignored by the court on the record that is made here, and the motion will therefore be allowed.

As to the county, counsel may confer upon that. The court will say this, however, that the court will not send it to any remote county in the state and not send it to any county except some county that can be easily reached from Chicago, that will be accessible and convenient. If counsel can agree upon such a county it will be perfectly satisfactory to the court, and if they cannot the court will determine.