People v. Mahoney , 18 Cal. 180 ( 1861 )

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

1. The mere fact that the County Judge belonged to an illegal association, as alleged in the affidavit, whose committee exiled the ' defendant on grounds unconnected with the present charge, does not show any legal incapacity to sit on the trial. If the Judge acted illegally on the trial, or denied the prisoner his legal rights, this would be good cause on appeal for the reversal; but we cannot undertake to say that this consideration operated a legal disqualification of the Judge to sit.

2. The mere affidavit of the defendant does not render it obligar tory on the Court to change the venue. The statute (Wood’s Dig. 294, sec. 314) declares : “ If the Court be satisfied that the representation of the defendant be true, an order shall be made for the removal,” etc. It is evident, therefore, that the Court is not bound to take for granted the unsupported statement of the defendant, and assign it conclusive effect. A reasonable discretion is to be given to it on this subject, and while we should not be disposed to hold an arbitrary refusal to change the venue as warranted, yet we think the mere unsupported assertion of the defendant, that he was the victim of a general prejudice in the county, is not a conclusive reason for changing the venue, when it is so easy to obtain corroboration of the statement, if it were really true. Nor did the failure to get a jury on a particular day afford such confirmation to the statements of the affidavit as made it error in the Court to refuse to change .the venue on the renewal of the application.

There was no error in the refusal to reject the juror, Dundass, for implied bias, nor in the charge to the jury.

Judgment affirmed.