Stalls v. The State. State, 1 Yerger, 206; Commonwealth v. Knapp, 10 Pick. 480; Hooker v. The State, 4 Ohio, 350; United States v. Cornell, 2 Mason's R. 105; Gillespie v. The State, 8 Yerger, 508; Beauchamp v. The State, 6 Blackf. 307; Hendrick's case, 5 Leigh's R. 715. RICE, C. J.-In a trial for an indictable offence, which may be punished capitally, or by confinement in the penitentiary, it is a good challenge for cause by the State, that the juror has a fixed opinion against capital or penitentiary punishments.-Code, § 3585; Ex parte McCrary, 22 Ala. 65. But the right of the State to challenge the juror for that cause is lost, when he is accepted by the State, and put on the prisoner, and accepted by him. After the right is thus lost, it cannot be revived by any act of the solicitor or the court, against the objection of the prisoner, although the solicitor and court were ignorant of the existence of that cause of challenge when the juror was accepted by the State and the prisoner. This is one of the advantages which the law allows to the prisoner on principles of humanity or policy. The Commonwealth v. Lesher, 17 Serg. & Rawle, 164, opinion of Gibson, J.; Montague v. Commonwealth, 10 Grattan's R. 767; Dowdy v. Commonwealth, 9 Grattan's R. 727; McCauley v. The State, 26 Ala. R. 135. The decision of the court setting aside the juror for that cause, after he had been accepted by the State and the prisoner, is matter of exception on the part of the prisoner, which it is his right to have reviewed in this court; and such decision, having been made against his objection, and been duly excepted to by him, is an error which entitles him to a reversal of the judgment.-Parsons v. The State, 22 Ala. R. 50; Montague v. Commonwealth, 10 Grattan's R. 767; The State v. Shaw, 3 Iredell's R. 532; McCauley v. The State, 26 Ala. R. 135. For the error of the court below in setting aside the juror, its judgment is reversed, and the cause remanded. Ex parte Banks. EX PARTE BANKS. [APPLICATION FOR MANDAMUS TO COMPEL CHANGE OF VENUE.] 1. When permissive words in statute will be construed imperative.—The word may, when used in a statute, will be construed mandatory and imperative for the purpose of sustaining and enforcing rights, but not for the purpose of creating a right or determining its character.--Per Walker, J., while Rice, C. J., held, that a permissive word should be construed peremptory, when used to clothe a public officer with power to do an act which ought to be done for the sake of justice, or which concerns the public interest or the rights of third persons. 2. Code construed with reference to previous judicial decisions.-In the framing of the statutes embodied in the Code, the legislature must be presumed to have had in view the then existing laws, and the construction placed upon them by the judicial decisions; and where the provisions of the Code are substantially the same with the old law, the legislative sanction of the judicial construction which it had received may be inferred.-Per Walker, J. 3. Change of venue in criminal case discretionary.—The granting of an application for a change of venue in a criminal case (Code, §§ 3608, 3609) is discretionary with the court to which the application is made, and its refusal is not revisable in the appellate court by mandamus or otherwise. (Rice, C.J., dissenting.) APPLICATION by Thomas G. Banks for a mandamus to the city court of Mobile, Hon. Alex. McKinstry presiding, to obtain a change of venue in a criminal case. The petition presented to this court, with the accompanying exhibit, shows that said Banks was indicted, at the November term of said city court, 1855, for the murder of Wm. H. Trone; that he made an application, supported by affidavit, at the same term of the court, for a change of venue; and that his application was refused. The affidavit submitted in support of that application states, that the affiant does not believe that he can have a fair and impartial trial in either Mobile or Baldwin county; that said Trone was an old, influential, popular, and much esteemed citizen of Mobile, whose death created such an excitement that it was proposed by some persons to take summary vengeance on the defendant, who was a citizen of Lowndes county, Mississippi; that three of the four newspapers published in Mobile, some of which are read by almost every citizen of Mobile and by many citizens of Baldwin Ex parte Banks. county, and which contribute in a large degree to give direction and tone to public opinion in those counties, have, without waiting for an investigation of the real facts of the case, published misstatements of the facts, charging affiant with the crime of murder, and comments which have excited the community against him; that affiant has been confined in jail, has had no opportunity to stay the public excitement, and has no hope of being able to do away with the excitement and prejudice raised against him; and he appends to his affidavit, as exhibits, extracts from the Mobile Register, Advertiser, and Evening News, purporting to state the facts in relation to the death of Trone, with editorial comments, and describing the public excitement against Banks. On this showing, the court refused the application for a change of venue; and the petitioner now seeks to revise its action by mandamus. DANIEL CHANDLER, for the petitioner : 1. This court has jurisdiction of the case.-Ala. Const., Art. V, § 2. 2. There is no other court that can "superintend or control" the action of the city court in criminal proceedings. It has concurrent jurisdiction with the circuit court in such cases, and its proceedings can only be revised by this court.—Pamph. Acts of 1846, p. 30; ib. 1850, p. 36; The State v. Porter, 1 Ala. 688; Ex parte Pickett, 24 ib. 91. 3. Mandamus is the proper remedy. The object of the writ is, to compel the person to whom it is directed to do something, which he is supposed to be bound by his duty to do, which the prosecuting party has a right to have done, and for which he has no other specific remedy.-7 Port. 47; 1 Ala. 688; 3 ib. 746; 4 ib. 317; 5 Watts & Serg. 403; 2 Stephens' N. P. 2291-2. 4. By the constitution of the State (Art. I, § 10), every man, who is indicted for a criminal offence, is entitled to "a speedy public trial by an impartial jury"; and when the life of the unfortunate individual is involved in the issue, the court should be careful not to impair his rights, or to increase his jeopardy. The State has no election as to the county in which the case is to be tried. It is supposed to be ready and Ex parte Banks. prepared to try the case in the county in which the offence was committed, or in the adjoining county to which it may be transferred. Its citizens have no prejudice against its authority. Its officers are supposed to be honest. The public press cannot assail it, and has no inducement to impair its authority. Its object is justice, which can be administered by its officers as impartially in one county as in another. But the case is widely different with the defendant charged with the violation of the law. He may not be able to have "a fair and impartial trial" in the county in which the alleged offence was committed. It may have been committed under circumstances well calculated to excite public sympathy for the deceased, and popular indignation against the accused. The former may have been popular, influential, highly respected, and much beloved; and the latter a stranger, without friends, and, though innocent of the crime, may have been imprudent, and therefore liable to be misrepresented, censured and condemned. The public press may add fuel to the flame, and, by misrepresentations, exaggerated statements, and inflammatory appeals, prepare the public mind for injustice, violence, and vengeance. The legislature knew this, and made provision for such a case. It permits the defendant, when charged with an indictable offence, (and more certainly in a capital case,) after making affidavit setting forth the reasons why he cannot have a fair and impartial trial in the county in which the indictment was found, to remove his trial to another county.-Code, § 3608. 5. The affidavit, and the facts embraced in the bill of exceptions, comply with the requirements of the statute, and are sufficient to satisfy any reasonable man that a fair and impartial trial cannot be had in Mobile. It appears that three out of the four public presses in the city have commented freely on the case, have misstated the facts, have appealed to the prejudices and passions of the public, and have excited and exasperated the popular mind, to such an extent that, "wherever you go in the city, or whosoever you meet, sympathy is expressed for the deceased, and punishment is invoked on the accused." The deed is pronounced "murder"; it is alleged to have been committed "without provocation"; it is said that "nothing can palliate the atrocity of the act, and Ex parte Banks. even the ingenuity of counsel cannot make it out an accident." One of the papers, after showing that confinement in the penitentiary is too good for such a "criminal," states that even his conviction and execution will not satisfy the public-that summary vengeance, and the execution of the accused under the law of the "regulators" and on the "first tree," are invoked. These papers are extensively read and circulated in the county; they represent the three great parties in the State, and, in a great measure, form and mould public opinion. Are not these facts, all of which are set forth in the affidavit, sufficient, specific, and satisfactory? 6. The judge below decided, contrary to right, to justice, and to law, that the accused was not entitled to a change of venue; and it is now said that his decision is not revisable. Is this so? A right so important, so essential to the liberty and life of the citizen, is not left to the discretion of the judge who may try the cause. If this were the case, the remedy would be incomplete and ineffectual. If left to the caprice, prejudice, or discretion of the judge, the right would be abused, and the fate of the accused would be decided, not on the evidence, nor by the law, but by prejudice or passion, or in conformity with the wishes of an excited populace. Judges are mere men; and we have read history to little profit, if we do not know that, while they are dependent on the people for their election, they will not be independent of their favor and good opinion. The legislature wisely provided, therefore, for a change of venue under particular circumstances; and if the accused presents, under oath, such a state of facts as will satisfy a reasonable man that an impartial trial cannot be had in the county in which the indictment was found, he has the right to insist on a change of venue. If the primary court refuse the application, this court will compel it to do what is necessary for the safety of the citizen and the administration of justice. 7. It is said that the word "may," as used in section 3608 of the Code, gives the judge a discretionary power to grant or refuse the application, and that his decision is final and conclusive. In the adoption of the Code, the legislature is presumed to have known the construction placed by this court on the word "may." It means must, or shall, when used in a |