Wheeler vs. The State of Georgia. failure to recover in cases of trespass on their roads. This is not the law. The law makes them liable for the damage done, and they may calculate the consideration of paying for stock killed or fencing; but we cannot hold that such animals as run at large are trespassers because they get upon an uninclosed railroad, no more than upon an uninclosed field; no more than a rabbit or dog running over it. And we do not think the Court erred in its charge upon this subject under the facts of this case. In Buxton vs. Northeastern Railway Company, Law Reports, 111; Sweeney's Bench cases, Sushing, Judge, held under 68th section, 8 Vic.; requiring the railroads to keep fences-" if the fence is not sufficient, and in consequence the cattle in the adjoining fields stray on to the line and are killed, the company are answerable to the owners, whether they are guilty of negligence or not." And upon the same principle, when the railroad has no fence, we think the same rule would apply; for the doctrine of contributory negligence cannot be presumed against the owner of stock in one case more than in another. Judgment affirmed. ISAAC WHEELER, plaintiff in error vs. THE STATE OF GEORGIA, defendant in error. On the trial of a prisoner who was indicted for the crime of murder in the county of DeKalb, where the crime was committed, after endeav oring to procure an impartial jury in the usual manner pointed out by law, the presiding Judge became satisfied that an impartial jury could not be obtained in that county, and passed the following order: "The State vs. Isaac Wheeler-The Court being satisfied that an impartial jury cannot be obtained in the county of DeKalb, for the trial of the above stated case, it is ordered by the Court that said case be transferred as to the defendants, from the county of DeKalb to the county of Fulton, and that the same be tried in said county of Fulton instead of the county of DeKalb, and that the Clerk of the Court in DeKalb Wheeler vs. The State of Georgia. make out, certify, and transmit a complete transcript of the record in said case to the Clerk of Fulton Superior Court. [Signed.] J. D. POPE, J. s. c.' This order of removal was objected to by the defendant, which objection was entered of record, but there is no error assigned in this Court as to that decision of the Court in DeKalb, as required by the 4191st section of the Code, so as to enable this Court to review it. There is another order in the record for the discharge of the jurors who had been sworn, in which it is recited, "that the Court having proceeded according to law to obtain a jury to try said case, and having, after using all necessary means, failed to obtain a jury, the jurors were discharged, and a new trial ordered, which was signed by the presiding Judge. On the trial of the case in Fulton county, the defendant moved to set aside the order removing the case, demurred and plead to the jurisdiction of the Court of that county, insisting upon his right to be tried in DeKalb county, in which the crime was committed, which motion, demurrer and plea were overruled by the Court. Held, That under the Constitution the Superior Court of DeKalb county, in which the crime was committed, had the original jurisdiction for the trial of the defendant, except when the presiding Judge thereof is satisfied that an impartial jury could not be obtained in that county; and in that event, the Court had the power and authority, under the Constitution, the Act of 6th of October, 1868, and the 4593d section of the Code, with the consent of the Solicitor General and defendant, or his counsel, to select the county in which the defendant should be tried, and to order the case transferred accordingly. The Court may transfer the case to the county agreed on by the parties, or in the event they fail or refuse to agree upon any county, then the Court may transfer the trial to such county as he may select. The record in this case does not show that there was any agreement as to the county, but the legal presumption in favor of the judgment is, that they failed or refused to agree upon any county. Held further, That the judgment of the Court in DeKalb county, removing the case to Fulton county, being the judgment of a Court of competent jurisdiction, could not be collaterally attacked in the Superior Court of Fulton county for irregularity, or as having been improperly granted, either on a motion to set it aside, or by demurrer or plea to the jurisdiction of the Court; and that the motion to set it aside, the demurrer and plea to the jurisdiction of the Court were properly overruled. Held also, That the challenge to the array of jurors impanneled to try the prisoner was properly overruled by the Court, inasmuch as it was not affirmatively shewn that the jurors were not selected from those whose names were in the jury-box, or that they had not been selected and summoned according to law. The legal presumption is, that the Wheeler vs. The State of Georgia. officers of the law performed their duty in the selecting and summon. ing the jurors, until the contrary is shewn by competent evidence; and the same may be said in regard to the objection made to the twentyfour traverse jurors. Held again, That there was no material error in the charge of the Court to the jury which could have influenced their verdict. And where the verdict is abundantly sustained by the evidence, as in this case, this Court will not be very astute in the discovery of errors, to set it aside, unless they be such as would have probably produced a different result. Criminal Law. Venue. Jurors, etc. Before Judge LOCHRANE. Fulton Superior Court. September, 1870. Isaac Wheeler and Pinckney Woodruff were jointly indicted in DeKalb Superior Court for the murder of Stephen Winn, a negro, in DeKalb county, on the 15th of May, 1869. At September Term, 1869, of DeKalb Superior Court, the defendants were arraigned and pleaded not guilty. They severed, and Wheeler was put upon trial. After ten jurymen had been sworn in to try him, Judge Pope, the presiding Judge, passed an order discharging said jurors and ordering a new trial. The reason for this order, recited in it, was that the Court had proceeded according to law to obtain a jury, and had failed, "after using all lawful means." He also passed another order that the case, as to both defendants, be transferred to Fulton Superior Court, and that the Clerk of DeKalb send a certified copy of the record to the Clerk of Fulton Superior Court. The reason for this order, recited in it, was that the Court was satisfied that an impartial jury to try said case could not be obtained in DeKalb county. Wheeler's counsel then and there filed exceptions pendente lite to said transfer and had them certified and entered upon the minutes as required by law. Nothing more, as to this, appears. In September, 1870, the case came on for trial in Fulton county, before Judge Lochrane, Judge Pope's successor. Wheeler vs. The State of Georgia. Wheeler's counsel moved there to annul said order of transfer, upon the following grounds: 1st. Because the reason given for the change of venue, in the order, was insufficient in law. 2d. Because Judge Pope was mistaken in supposing two more impartial jurors could not have been had in DeKalb county, as many citizens of DeKalb "had not been put on any list or pannel of the jurors summoned in said case." 3d. Because the order was passed over Wheeler's protest "before all lawful and usual means and efforts had been exhausted in the matter." 4th. Because this order was, upon the Court's own motion, without notice to Wheeler and without opportunity for him to produce evidence to show that an impartial jury could be had. 5th. Because the order applied to Woodruff, when no effort had been made to get a jury to try him. 6th. Because the Court was misled and taken by surprise, and, in passing said order, acted hastily, without due deliberation, and to Wheeler's injury. Wheeler's counsel proposed to argue these grounds. The Court refused to hear argument, and overruled the motion. Wheeler was put upon trial separately. By permission, he withdrew his plea of not guilty, and demurred to the jurisdiction of Fulton Superior Court, averring that the jurisdiction was in DeKalb, because the fact occurred there and the record of change of venue did not show all the facts necessary to change the venue at all or to Fulton county; it does not show a jury could not be had in DeKalb, nor that the Solicitor General and Wheeler's counsel could not agree as to the new venue, or that opportunity for trying to agree was allowed, or opportunity for showing that a jury could be had in DeKalb was allowed. 2d. Because the right to change the venue is a constitutional right, incapable of enforcement without legislation, and no legislation has been had on the subject. This demurrer was overruled. His counsel then pleaded to the jurisdiction of Fulton Superior Court upon the following grounds: 1st. An impartial jury can now be had, to try said cause, in DeKalb Wheeler vs. The State of Georgia. county, where the indictment was found, etc. 2d. Because the venue had been illegally changed as aforesaid. This plea was overruled. Wheeler then pleaded not guilty. When the pannel of jurors was put upon him, the array was challenged upon the following grounds: 1st. Because his counsel had asked the Court for the original venire upon which the original pannel was ordered to be drawn and summoned, that they might decide whether the same was legally done, and it was refused. 2. Because it does not appear of record that the pannel of twenty-four jurors were legally drawn and summoned. 3d. Because the pannel of twentyfour is composed in part of persons whose names were not on the original venire and were not drawn legally, and the twenty-four jurors, viz: * "were not in the box, composed of upright and intelligent persons, who alone are constituted by law competent jurors to be put upon the prisoner, and they do not appear to the Court to be competent jurors. 4th. Because the names of two of the jury viz: ** are not in the jury box. This challenge to the array was overruled." * 4. In selecting the jury, five of the first twenty-four who were put upon prisoner were respectively challenged for cause, upon the ground, that it appeared, from the records and minutes of the Court, that the name of neither of them was in the original pannel, as drawn from the jury box; nor did it appear that either name had been in the jury box. These challenges for cause were overruled. The jury having been impanneled, the State proceeded to introduce the evidence. So much of it as is material here, is as follows: Winn was with a party fishing, at night. This party were negroes. Wheeler, Woodruff, and others, white men, formed another party, hunting on the same creek. The white men came to where the negroes were, and the dogs of the negroes ran out after those of the white men and started to fight. One of the white men hallooed, with an oath, that he would kill the dogs of the negroes if they were not called off. One of the |