The writ of mandamus is refused, and no costs are awarded.

STEERE, C. J., and STONE, J., concurred with OsTRANDER, J.

BROOKE, J. (dissenting in part). I agree with my Brother OSTRANDER in holding that the recorder's court of the city of Detroit can lawfully make the order in question if a circuit court has power, under the circumstances of this case, to make such an order.

I am further of the opinion that, if the making of said order is a discretionary matter, it cannot be reviewed in this proceeding, if we follow the rule announced in Lyle V. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306). I am, however, convinced that to hold that a court, either circuit or recorder's, may make such an order upon the petition of the people, such as we have before us here, is to deny to relators their plain constitutional rights. It seems to me that such a holding strikes at the very foundation of liberty, and makes a mockery of all constitutional safeguards. For it cannot be denied that, had respondent chosen to order these relators to go to trial in Gogebic county, more than 500 miles from the scene of their alleged crimes, the decision of this court must have been the same, if the authority upon which my Brother OSTRANDER bases his opinion is sound.

In the case of People v. Peterson, 93 Mich. 27 (52 N. W. 1039), cited and relied upon by the people, Mr. Justice LONG, who wrote the opinion, quotes a single paragraph from the decision in the case of Swart v. Kimball, 43 Mich. 449 (5 N. W. 638). I think consideration of the whole opinion must lead to a conclusion at variance with the one announced by Mr. Justice LONG. Mr. Justice COOLEY there said:

"Now that in jury trial it is implied that the trial shall be by a jury of the vicinage is familiar law. Blackstone says the jurors must be of the visne or neighborhood; which is interpreted to be of the county where the fact is

committed.' 4 Com. 350. This is an old rule of the common law (Hawk. P. C. b. 2, 40; 2 Hale, P. C. 264); and the rule was so strict and imperative that if an offense was committed partly in one county and partly in another the offender was not punishable at all. Hawk. P. C. b. 2, c. 25; 1 Chit. Cr. L. 177. This overnicety was long since dispensed with, but the old rule has in the main been preserved in its integrity to this day. It is true that Parliament as the supreme power of the realm made some exceptions, which are enumerated by Mr. Chitty in his treatise on Criminal Law, vol. 1, p. 179; the chief of these being cases of supposed treason or misprision of treason examined before the privy council, and which, under a statute of Henry VIII, might be tried in any county, and offenses of the like character committed out of the realm, and which, by a statute of the same arbitrary reign, were authorized to be tried in any county in England. But it is well known that the existence of such statutes with the threat to enforce them was one of the grievances which led to the separation of the American colonies from the British Empire. If they were forbidden by the unwritten constitution of England, they are certainly unauthorized by the written Constitutions of the American States, in which the utmost pains have been taken to preserve all the securities of individual liberty. It has been doubted in some States whether it was competent even to permit a change of venue on the application of the State, to escape local passion, prejudice and interest (Kirk v. State, 1 Cold. [Tenn.] 344; Osborn v. State, 24 Ark. 629; Wheeler v. State, 24 Wis. 52); but this may be pressing the principle too far. State v. Robinson, 14 Minn. 447 [Gil. 333]; Gut v. Minnesota, 9 Wall. (U. 8.) 35. But no one doubts that the right to a trial by a jury of the vicinage is as complete and certain now as it ever was, and that in America it is indefeasible. 1 Bish. Cr. Law (2d Ed.), § 552; Whart. Crim. Law, § 277; Paul v. City of Detroit, 32 Mich. 108; Ward v. People, 30 Mich. 116.

"If we needed evidence of the value of the right, we would find abundance of it in this record. A citizen is arrested on a criminal accusation and carried off to a distant part of the State for trial. If he is poor and relies upon many witnesses for his exculpation, this will almost of necessity put it out of his power to make a complete defense; if he is a man of moderate means, the defense may ruin him. **But a disadvantage quite as great

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as the want of means is likely to be experienced in the fact that the accused is away from his friends and among strangers, who will know of him only this: That he is under arrest upon presumptive proof of being a felon. Of what avail is a man's good reputation to him under such circumstances, when the neighbors who know it are at a distance, and when the very accusation among strangers will necessarily fix upon him a strong suspicion ?

"We have not the slightest hesitation in declaring that the act of 1857, so far as it undertakes to authorize a trial in some other county than that of the alleged offense, is oppressive, unwarranted by the Constitution, and utterly Void."

The eminent writer of this opinion, in his work on Constitutional Limitations (7th Ed.), p. 459, says:

"The jury must be summoned from the vicinage where the crime is supposed to have been committed."

In support of this text a note is appended, where it is said:

"Offenses against the State are to be tried in the county in which they are charged to have been committed; *** but courts are generally empowered, on the application of an accused party, to order a change of venue, where for any reason a fair and impartial trial cannot be had in the locality. [Citing cases.] It has been held incompetent to order such a change of venue on the application of the prosecution. Kirk v. State, 1 Cold. [Tenn.] 344; Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629; People v. Powell, 87 Cal. 348 (25 Pac. 481, 11 L. R. A. 75); *** Armstrong v. State, 1 Cold. [Tenn.] 338; State v. Denton, 6 Cold. [Tenn.] 539. Contra: State v. Robinson, 14 Minn. 447 [Gil. 333]; Willis v. State, 10 Tex. App. 493."

To these authorities should be added the following: State v. Howard, 31 Vt. 414; Ex parte Rivers, 40 Ala. 712; State v. Knapp, 40 Kan. 148 (19 Pac. 728).

In Hill v. Taylor, 50 Mich. 549 (15 N. W. 899), it is said:

"Although there are some cases where by the rules of law that might be deemed the locus delicti, it cannot be seriously claimed that the prosecution can be had in a

county where the crime was not actually or in contemplation of law perpetrated. The constitutional guaranty on this subject is too plain to be controverted."

In the late case of People v. Brock, 149 Mich. 464 (112 N. W. 1116, 119 Am. St. Rep. 684), the principles laid down in these two cases were distinctly reaffirmed. There the late Justice HOOKER said:

"It would be a startling innovation should we say that the legislature has power to subject a person charged with crime to prosecution in any one of several counties.

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Whatever may have been held by the courts of other States, the cases of Swart v. Kimball, supra [43 Mich. 443 (5 N. W. 635)], and Hill v. Taylor, 50 Mich. 551 [15 N. W. 899], settle the rule for Michigan.'

It is, of course, true that all three of the foregoing decisions dealt with legislative enactments which empowered the people to initiate prosecutions in a county other than that in which the alleged crime was committed; but I challenge attention to the fact that it makes little difference to the accused whether he is originally indicted in a foreign jurisdiction, or, after indictment in his home county, he is, against his protest, removed to such foreign jurisdiction for trial. The result to him is identical in both cases; and if the legislature, by reason of constitutional limitations, may not directly enact a law abridging the rights of the individual I am at a loss to understand how it may do so indirectly by means of a statute relating to change of venue.

The authority upon which the decision in the case of People v. Peterson rests is unquestionably People v. Webb, 1 Hill (N. Y.), 179. This decision was announced in 1841. It is cited as authority in every case where it has been held that a change of venue may be had at the instance of the prosecution. In passing, it should be observed that the indictment had been removed to the supreme court by certiorari, and that the motion for a change of venue was made in the appellate tribunal. It further appears that the court carefully examined the

showing made and held it to be sufficient. The court found its authority for making the order in two cases: King v. Nottingham, 4 East. 208, and People v. Vermilyea, Cow. (N. Y.) 108.

I am of opinion that neither case is authority for the holding. In the Nottingham Case the order removing the cause to an adjoining county was made under the Stat. 38 Geo. III, chap. 52. Section 1 provides that—

"In every indictment removed into B. R. by certiorari, and in every information filed by the attorney general if the venue be laid in the county of any city or town corporate, it shall and may be lawful for the court in which such indictment, etc., shall be depending, at the instance of the prosecutor or of any defendant, to direct the issue joined, etc., to be tried by a jury of the county next adjoining to the county of such city.'

Section 12 provides:

"That nothing in this act contained shall extend to enable any person to prefer any bill of indictment for any offense committed within the county of the city, etc., to the jury of such next adjoining county as aforesaid, or to remove any indictment, etc., except the person preferring such bill or applying for such removal shall enter into a recognizance before the court where such bill shall be preferred, or the court or magistrate to whom such application shall be made in the sum of 40 pounds."

A motion was made to quash the rule directing the removal and trial of the indictment in the county of Lincoln. It was suggested that the twelfth section was meant to include all cases of removal of an indictment for trial into the county at large from the county of the city. The prosecutor, at whose instance the removal had been made, had not entered into the recognizance for 40 pounds. Lord Ellenborough, C. J., said:

"We are all satisfied that the twelfth clause, requiring the recognizance of 40 pounds to be entered into upon the change of venue, does not relate to cases where the indictment has been previously removed into this court by certiorari."