exists.61 The discretion required to be exercised, however, is a sound legal discretion, and not a mere arbitrary action resting upon whim, caprice, or bias.62 [§ 307] 2. Grounds for Change of Venue-a. Local Prejudice (1) In General. The right of one accused of crime to a fair and impartial trial was recognized at common law, and is preserved in the several states by constitutional provisions or by statute; and where it is shown that there exists within the county wherein the indictment was found such excitement or prejudice as will preclude a fair and impartial trial, accused is entitled to a removal;64 P 706. Ill-Jamison v. Peo., 145 Ill. 357, 34 NE 486; Hickam V. Peo., 137 III. 75, 27 NE 88. Ind. Short v. State, 63 Ind. 376; Fahnestock v. State, 23 Ind. 231; Hall v. State, 8 Ind. 439; Hubbard V. State, 7 Ind. 160; Spence v. State, 8 Blackf. 281. Iowa.-State v. Hassan, 149 Iowa 518, 128 NW 960; State v. Stewart, 74 Iowa 336, 37 NW 400; State V. Beck, 73 Iowa 616, 35 NW 684; State v. Perigo, 70 Iowa 657, 28 NW 452; State v. Freeman, 27 Iowa 333; State V. Hutchinson, 27 Iowa 212; State v. Ross, 21 Iowa 467; State v. Ostrander, 18 Iowa 435; State v. Arnold, 12 Iowa 479. Kan-State v. Knadler, 40 Kan. 359, 19 P 923. Ky. Saylor v. Com., 158 Ky. 768, 166 SW 254; Jett v. Com., 139 Ky. 794, 85 SW 1179, 27 KyL 603; Howard v. Com., 26 SW 1, 15 KyL 873. La.-State v. Causey, 43 La. Ann. 897; State v. Dent. 41 La. Ann. 1082, 7 S 694; State v. White, 30 La. Ann. 364. Mo.-State v. Brownfield, 83 Mo. 448. Nev.-State v. Millain, 3 Nev. 409. 780, 10 SE 257. Or. State v. Smith, 47 Or. 485, 83 P 865. Tenn.-Hudson v. State, 3 Coldw. 355; Moses V. State, 11 Humphr. 232. Tex.-Crow v. State, 41 Tex. 468; Cotton v. State, 32 Tex. 614; Smith v. State, 21 Tex. A. 277. 17 SW 471: Martin v. State, 21 Tex. A. 1, 17❘ SW 430; Clampitt v. State. 9 Tex. A. 27; Daugherty v. State, 7 Tex. A. 480. Utah.-State v. Haworth, 24 Utah 398, 68 P 155. Wis.-Martin v. State, 79 Wis. 165, 48 NW 119. 61. Fla.-McNealy v. State, 17 Fla. 198. Mo.-State v. Sayers, 58 Mo. 585: State v. Lack, 58 Mo. 501; State v. O'Rourke. 55 Mo. 440. Nev.-State v. Gray, 19 Nev. 212, 8 P 456. Pa.-Com. v. Cleary, 148 Pa. 26, 23 A 1110; Com. v. Allen, 135 Pa. 483. 19 A 957. Tenn.-Hudson v. State, 3 Coldw. 355. Wis.-State v. Backus, 165 Wis. 179, 161 NW 759; Rowan v. State, 30 Wis. 129, 11 AmR 559. [a] "Satisfied."-Where a statute (Pen. Code § 1095) requires the court to be satisfied that the representation affidavits filed, and in the circumsion reached must be such as to find warrant in the facts disclosed by the affidavits filed and in the circumstances made to appear in the record. Peo. v. Yoakum, 53 Cal. 566. 62. Cal.-Peo. v. Yoakum, 53 Cal. 566. Il-Price v. Peo., 131 Ill. 223, 23 NE 639. Ind.-Fahnestock v. State, 23 Ind. 231. Nebr.-Lucas v. State, 75 Nebr. 11, 105 NW 976. Nev-State v. Millain, 3 Nev. 409. [a] In Iowa, under Code § 4374, re and where the affidavits show by a preponderance of evidence that the trial court has palpably abused its discretion in denying a change of venue, the appellate court will interfere and direct a new trial.65 On the other hand, it is not sufficient merely to show that great prejudice exists against accused; it must appear that the prejudice against him is so great as to prevent him from receiving a fair and impartial trial 66 and where the evidence before the court is conflicting, its decision will not be reversed upon appeal; and if the affidavits tending to show prejudice are met by an equal or a greater number, the court properly in its discretion may deny the appli862, 69 SE 953; Uzzle v. Com., 107 Va. 919, 60 SE 52; Com. v. McCue, 1 Va. Cas. (3 Va.) 137. Iquiring the court, in a criminal case 63. See supra § 302. 64. See cases infra note 65. Ark.-Ford v. State, 98 Ark. 139, Cal.-Peo. v. Suesser, 132 Cal. 631, 64 P 1095; Peo. v. Graham, 21 Cal. 261. Fla. Garcia v. State, 34 Fla. 311, 16 S 223. Ga.-Graham v. State, 141 Ga. 812, 82 SE 282. Iowa.-State V. Foster, 91 Iowa 164, 59 NW 8; State v. Crafton, 89 Iowa 109, 56 NW 257; State v. Billings, 77 Iowa 417, 42 NW 456; State v. Nash, 7 Iowa 347. Ky-Browder v. Com., 136 Ky. 45, 123 SW 328; Anderson v. Com., 117 SW 364; Johnson v. Com., 107 SW 768, 32 KyL 1117; Shipp v. Com., 124 Ky. 643, 99 SW 945, 30 KyL 904, 10 LRANS 335. La.-State V. Gonsoulin, 38 La. Ann. 459; State v. Ford, 37 La. Ann. 443. Miss.-Magness v. State, 103 Miss. 30, 60 S 8; Anderson v. State, 92 Miss. 656, 46 S 65; Brown v. State, 83 Miss. 645, 36 S 73; Owens v. State, 82 Miss. 31. 33 S 722; Saffold v. State, 76 Miss. 258, 24 S 314. Mo.-State v. Vickers, 209 Mo. 12, 106 SW 999. Nebr.-Lucas v. State, 75 Nebr. 11. 105 NW 976; Richmond v. State, 16 Nebr. 388. 20 NW 282. Nev.-State v. Dwyer, 29 Nev. 421, N. Y.-Peo. v. Jackson, 114 App. Wash.-State v. Hillman, 42 Wash. 615, 85 P 63. W. Va.-State v. Manns, 48 W. Va. 480. 37 SE 613. [a] Prejudices which will warrant the removal of civil cases are not applicable in criminal causes, unless made so by statute. Hourigan v. Com., 94 Ky. 520, 23 SW 355, 15 KyL 265. [b] Crime not punishable by imprisonment in state prison.-Under Rev. St. (1898) § 4679, authorizing the court to change the venue in a criminal case, where it appears that a fair and impartial trial cannot be had in the county and the offense charged is punishable by imprisonment in the state prison, the venue cannot be changed on the ground of local prejudice where the offense is not punishable by imprisonment in the state prison. Hanley v. State, 125 Wis. 396, 104 NW 57. 182 66. See cases infra note 67. 67. Ala.-McClain V. State, Ala. 67, 62 S 241; Adams v. State, 61 S 352; Howard v. State, 165 Ala. 18, 50 S 954; Thompson v. State, 122 Ala. 12, 26 S 141; Hawes v. State, 88 Ala. 37, 7 S 302; Hussey v. State, 87 Ala. 121, 6 S 420; Seams v. State, 84 Ala. 410, 4 S 521; Posey v. State, 73 Ala. 490. Ariz.-Elias v. Terr., 9 Ariz. 1, 76 P 605, 11 AnnCas 1153; Parker v. Terr.. 5 Ariz. 283, 52 P 361. Ark. Williams v. State, 100 Ark. 218, 139 SW 1119; Duckworth v. State, 80 Ark. 360, 97 SW 280. Cal.-Peo. v. Congleton, 44 Cal. 92; Peo. v. Mahoney, 18 Cal. 180. Fla. Shepherd V. State, 36 Fla. 374, 18 S 773; McNealy v. State, 17 Fla. 198. Ga.-Coleman v. George, 140 Ga. 619. 79 SE 543. Hawaii.-Terr. v. Robello, 20 Hawaii 7. Ida. State v. Rooke, 10 Ida. 338, 79 P 82. Ill.-Peo. v. Pfanschmidt, 262 I11. 411, 104 NE 804, AnnCas1915A 1171; Gitchell v. Peo., 146 I. 157, 33 NE 757, 37 AmSR 147; Hickam v. Peo., 137 Ill. 75. 27 NE 88; Dunn v. Peo., 109 Ill. 635. Ind. Smith v. State, 145 Ind. 176, 42 NE 1019; Masterson v. State, 144 Ind. 240, 43 NE 138; Bissot v. State, 53 Ind. 408. Iowa.-State v. Rohn, 140 Iowa 640. 119 NW 88; State v. Brown, 130 Iowa 57. 106 NW 379; State v. Williams, 115 Iowa 97. 88 NW 194; State v. Edgerton. 100 Iowa 63, 69 NW 280; Tenn.-Holcomb v. State, 8 Lea State v. Weems, 96 Iowa 426, 65 NW Pa.-Com. v. Ronemus, 205 Pa. 420, 54 A 1095. 417. Tex.-Anschicks v. State, 45 Tex. 148; Sorrell v. State, (Cr.) 169 SW 299; Streight v. State, 62 Tex. Cr. 453, 138 SW 742; Coffman v. State, 62 Tex. Cr. 88, 136 SW 779; Dobbs v. State, 51 Tex. Cr. 629, 103 SW 918; Alarcon V. State, 47 Tex. Cr. 415, 83 SW 1115; Faulkner v. State, 43 Tex. Cr. 311, 65 SW 1093; Barnes v. State, (Cr.) 59 SW 882: Gallaher v. State, 40 Tex. Cr. 296, 50 SW 388. Va.-Looney v. Com.. 115 Va. 921, 78 SE 625; Jones v. Com., 111 Va. 387; State v. Helm, 92 Iowa 540, 61 NW 246; State v. Belvel. 89 Iowa 405, 56 NW 545, 27 LRA 846; State v. Woodard, 84 Iowa 172, 50 NW 885; State v. Conable, 81 Iowa 60, 46 NW 759; State v. Caldwell, 79 Iowa 473. 44 NW 711: State v. Kennedy, 77 Iowa 208. 41 NW 609; State v. Rowland. 72 Iowa 327, 33 NW 137; State v. Hutchinson, 27 Iowa 212. Kan.-State V. Tawney, 83 Kan. 603, 112 P 161; State v. Bassnett, 80 Kan. 392, 102 P 461; State v. Parmenter, 70 Kan. 513, 79 P 123. cation.68 [§ 308] (2) Nature of Prejudice(a) In General. Prejudice may exist either personally against accused himself, or by reason of a prejudgment of his cause.69 But the fact that a prejudice exists against persons charged with certain crimes furnishes no ground for a change of venue when there is no showing of any special prejudice against accused.70 The prejudice must extend throughout the county generally; it is insufficient that an impartial trial cannot be had by a jury from a portion thereof.71 Prejudice subsided. The existence of prejudice, however bitter and violent at a given time, will not authorize a change of venue if it is fairly shown 68. See cases supra note 67. 69. Coffman v. State, 62 Tex. Cr. 88, 136 SW 779; Meyers v. State, 39 Tex. Cr. 500, 46 SW 817; Randle v. State, 34 Tex. Cr. 43, 28 SW 953. [a] Race prejudice.-(1) A negro may demand a trial in another county if there exists in the county of the venue such a prejudice against negroes as will prevent him from having a fair trial there. Dorsey v State, 179 Ind. 531, 100 NE 369; Browder v. Com., 136 Ky. 45, 123 SW 328; Burton v. Com., 107 Va. 931, 60 SE 55; Uzzle v. Com., 107 Va. 919, 60 SE 52. (2) Where a negro has been tried three times in the same county for homicide, and the race question is prominent, a change of venue should be granted on another trial, although witnesses testify that in their opinion a fair and impartial jury can be secured in the county. Smith v. State, 45 Tex. Cr. 405, 77 SW 453. (3) But compare Thompson v. State, 122 Ala. 12, 26 S 141 (holding that the facts that one accused of rape was a stranger and a member of a United States colored regi-. ment, the members of which had committed various crimes while it was quartered in that community, until a deep-seated prejudice had been fixed in the minds of the people against the entire regiment, and that efforts were made to mob accused, and he had been published as "the villain who committed the deed," and that the prosecutrix was a resident of the county, and had friends and relations therein, were not sufficient to entitle accused to a change of venue). 70. Shepherd v. State, 36 Fla. 374, 18 S 773; McNealy v. State, 17 Fla. 198; State v. Rohn, 140 Iowa 640, 119 NW 88. [a] One accused of an infamous crime, such as incest, does not show prejudice of the inhabitants of the county by a showing that, in the selection of the jurors, a juror indicated that he had a greater prejudice against the crime of incest than against other penitentiary offenses. Peo. v. Turner, 260 Ill. 84, 102 NE 1036, AnnCas1914D 144. [b] A combination of influential citizens to suppress crime generally was held not to be "a dangerous combination," within Code Cr. Proc. art 578, which specifies the grounds upon which a change of venue may be granted. The combination contemplated is one directed against accused in the particular case. Cravey v. State, 23 Tex. A. 677, 5 SW 162. 71. Ariz.-Elias v. Terr., 9 Ariz. 1, 76 P 605, 11 AnnCas 1153. Ark.-Maxey v. State, 76 Ark. 276, 88 SW 1009. Cal.-Peo. v. Baker, 1 Cal. 403. Colo.-Power v. Peo., 17 Colo. 178, 28 P 1121. Ill.-Peo. v. Murphy, 276 Ill. 304, 114 NE 609; Price v. Peo., 131 Ill. 223, 23 NE 639. Iowa. State v. Moats, 108 Iowa that the excitement and prejudice have subsided, and that a jury can be obtained which will render a verdict regardless of public opinion.72 [309] (b) Illustrations. Newspaper articles denunciatory of accused are not in themselves sufficient evidence of the existence of such prejudice as will justify a change,73 unless public hostility has been so aroused thereby that it is improbable that a fair trial can be had.74 Danger of mob violence. Threats of personal harm to accused,75 and actual attempts of a mob to hang him,76 will not necessarily indicate that a jury cannot be obtained which will accord a fair and impartial trial, so as to require a change of venue. But the contrary also has been held." And, 13, 78 NW 701; State v. Perigo, 7075, 27 NE 88; Dunn v. Peo., 109 Ill. Iowa 657, 28 NW 452. 635. Kan.-State v. Parmenter, 70 Kan. 513, 79 P 123. La. -State v. Pointdexter, 117 La. 380, 41 S 688. Mo.-State v. Hudspeth, 150 Mo. 12, 51 SW 483; State v. Headrick, 149 Mo. 396, 51 SW 99. Nev.-State v. Casey, 34 Nev. 154, 117 P 5. Or.-State v. Armstrong, 43 Or. 207, 73 P 1022. Tex.-Earles v. State, 47 Tex. Cr. 559, 85 SW 1; Tardy v. State, 46 Tex. Cr. 214, 78 SW 1076; Renfro v. State, 42 Tex. Cr. 393, 56 SW 1013; Red v. State, (Tex. Cr.) 53 SW 618; Johnson v. State, 26 Tex. A. 399, 9 SW 762. [a] Counties attached for judicial purposes.-Where several counties are attached for judicial purposes, a petition for a change of venue founded upon prejudice of the inhabitants must show that such prejudice exists in all of the counties attached. Black v. Bent, 20 Colo. 342, 38 P 387; Fitzgerald v. Peo., 1 Colo. 56. [b] Prosecution of county treasurer; jury of taxpayers.-The fact that, in a prosecution against a county treasurer for malfeasance in office, the jurors will be drawn from the taxpayers in the county is insufficient to show that a fair and impartial trial cannot be had. Com. v. Delamater, 145 Pa. 210, 22 A 1098. 72. Ala. Terry v. State, 120 Ala. 286, 25 S 176; Daughdrill v. State, 113 Ala. 7, 21 S 378; Horn v. State, 98 Ala. 23, 13 S 329; Rains v. State, 88 Ala. 91, 7 S 315; Hawes v. State, 88 Ala. 37, 7 S 302. Cal.-Peo. v. Goldenson, 76 Cal. 328, 19 P 161. Ida.-State v. Reed, 3 Ida. 754, 35 P 706. Iowa.-State v. Williams, 115 Iowa 97, 88 NW 194. Ky. Stroud v. Com., 160 Ky. 503, 169 SW 1021; Dilger v. Com., 88 Ky. 550, 11 SW 651, 11 KyL 67. Miss. Butler v. State, 39 S 1005. Mo.-State v. Rose, 193 SW 811. Nebr.-Simmerman V. State, 16 Nebr. 615, 21 NW 387. Pa.-Com, v. Smith, 185 Pa. 40 A 73. 553, Tenn.-Poe v. State, 10 Lea. 673; Honeycutt v. State, 8 Baxt. 371. Tex.-Hutcherson v. State, 62 Tex. Cr. 1, 136 SW 53; Blain v. State, 34 Tex. Cr. 448, 31 SW 368. W. Va.-State v. Sheppard, 49 W. Va. 582, 39 SE 676. [a] The fact that prejudice may exist at one term of the court is not evidence that it exists at a subsequent term. Moore v. State, 49 Tex. Cr. 499, 96 SW 321. [b] Where nearly a year has elapsed since the occurrence, it may fairly be presumed that the excitement created by it has in great measure subsided. State v. Perigo, 70 Iowa 657, 28 NW 452; Peo. v. Swift, 172 Mich. 473, 138 NW 662. 73. Ill.-Hickam v. Peo., 137 Ill. Iowa.-State v. Brown, 130 Iowa 57, 106 NW 379; State v. Edgerton, 100 Iowa 63, 69 NW 280; State v. Hamil, 96 Iowa 728, 65 NW 395; State v. Weems, 96 Iowa 426, 65 NW 387. Kan.-State v. Furbeck, 29 Kan. 532; State v. Rhea, 25 Kan. 576. Mo.-State v. Barton, 8 Mo. A. 15 [aff 71 Mo. 288]. N. J.-State v. Overton, 85 N. J. L. 287, 88 A 689. N. Y.-Peo. v. Squire, 1 NYSt 534 [aff 14 Daly 154 (aff 107 N. Y. 593, 14 NE 820, 1 AmSR 893 [aff 145 U. S. 175, 12 SCt 880, 36 L. ed. 666])]; Peo. v. Sharp, 5 N. Y. Cr. 155. Or.-State v. Caseday, 58 Or. 429, 115 P 287. Pa.-Com. v. Smith, 185 Pa. 553, 40 A 73. Tenn.-Hughes v. State, 126 Tenn. 40, 148 SW 543, AnnCas1913D 1262. Va.-Muscoe v. Com., 87 Va. 460, 12 SE 790. Wash.-State v. Welty, 65 Wash. 244, 118 P 9; State v. Champoux, 33 Wash. 339, 74 P 557; Edwards V. State, 2 Wash. 291, 26 P 258. 74. Peo. v. Suesser, 132 Cal. 631, 64 P 1095; State v. Crafton, 89 Iowa 109, 56 NW 257; Peo. v. Jackson, 114 App. Div. 697, 100 NYS 126, 20 N. Y. Cr. 126; Peo. v. Diamond, 36 Misc. 71, 72 NYS 179; State v. Olds, 19 Or. 397, 24 P 394; State v. Welty, 65 Wash, 244, 118 P 9; State v. Hillman, 42 Wash. 615, 85 P 63. 75. State v. Rhea, 25 Kan. 576; Harrison v. State, (Tex. Cr.) 43 SW 1002. [a] Mob suppressed by militia.On a trial for murder, where it appeared that the militia had been called out to prevent mob violence, but the excitement had subsided at the time of the application for the change, and the majority of the witnesses believed that a fair trial could be had, the court held that the refusal to grant the change did not require a reversal of conviction. Dilger v. Com., 88 Ky. 550, 11 SW 651, 11 KyL 67. [b] Sheriff obliged to remove prisoner.-The fact that at the county seat where a homicide had been committed the local prejudice was so strong that the sheriff was obliged to remove defendant to another county for safekeeping was held not to be conclusive of the impossibility of obtaining a fair trial, where the counter affidavits showed that an impartial jury could be obtained from other parts of the county. Price v. Peo., 131 Ill. 223, 23 NE 639. 76. Thompson v. State, 122 Ala. 12, 26 S 141; Rains v. State, 88 Ala. 91, 7 S 315; Jamison v. Peo., 145 Ill. 357, 34 NE 486; State v. Horne, 9 Kan. 119. 77. Thompson v. State, 117 Ala. 67, 23 S 676; Brown v. State, 83 Miss. 645, 36 S 73; Richmond v. State, 16 Nebr. 388, 20 NW 282; State v. Greer, 22 W. Va. 800. by statute, in Georgia danger of lynching has been made a special ground for a change of venue.78 Contributions to cost of prosecution. Contribution to defray the cost of assisting the prosecution will not of itself show the existence of such prejudice in the whole county as will justify a change.79 The fact that two trials have already been had may, or may not,81 show that a fair trial cannot be had. 80 properly, even though prejudice in the community is in fact shown to exist.83 Where the court finds that prejudice exists, preventing a fair trial, it is improper to deny an application for a change of venue on the ground that the same prejudice exists in other counties, there being no evidence as to the existence of such prejudice.s 84 [311] c. Disqualification or Prejudice of Judge.85 Aside from statute the prejudice of the judge against accused is not alone a sufficient reason for a change of venue.s In many states, however, statutes provide substantially that, where it appears that a judge is prejudiced against the prisoner or interested in the case, a change of venue may be had.87 Facts and circumstances very clearly showing the prejudice must be proved by affidavits or 154, 94 NW 158, 104 NW 154; Golds- | likely to be intimidated and overberry v. State, 66 Nebr. 312, 92 NW awed by public demonstrations 906; Welsh v. State, 60 Nebr. 101, against accused. State v. Casey, 34 82 NW 368. Nev. 154, 117 P 5 [quot State v. Millain, 3 Nev. 409]. [310] b. Convenience of Witnesses. In the absence of a statute, a change of venue cannot be had merely to suit the convenience of witnesses, as where they reside out of the county in which accused is indicted.82 If a fair and impartial jury can in fact be obtained, a motion for a change of venue because of local prejudice may be denied 78. Graham v. State, 141 Ga. 812, 82 SE 282; Kennedy v. State, 141 Ga. 314, 80 SE 1012. 79. Peo. v. Graham, 21 Cal. 261; Alarcon v. State, 47 Tex. Cr. 415, 83 SW 1115; Wormeley V. Com., 10 Gratt. (51 Va.) 658. [a] County employing special counsel. Local prejudice is not shown by proof that a commissioner's court within the county appropriated, with or without authority, funds for the employment of special counsel to aid go rally in the prosecution of offenses. Cravey v. State, 23 Tex. A. 677, 5 SW 162. [b] Contributions to capture escaped prisoner.-(1) The fact that money has been raised by subscription by citizens of the district to apprehend a person who is accused of crime and who has escaped from the sheriff is insufficient to authorize a change of venue upon the ground that accused could not obtain a fair and impartial trial. State v. Williams, 13 S. C. L. 383. (2) But, where the affidavit showed that a fair and impartial trial could not be had; that the judge before whom the case was to be tried was biased and prejudiced; and that over one hundred citizens had united in employing counsel to prosecute and no counter affidavits were interposed, it was held that a sufficient case was made to entitle the prisoner to a change of venue. Peo. v. Lee, 5 Cal. 353. 80. State v. Olds, 19 Or. 397, 24 P 394. 81. Reg. v. Nicol, 4 CanCrCas 1. 82. Kan.-State v. Daugherty, 63 Kan. 473, 65 P 695; State v. Furbeck, 29 Kan. 532; State v. Rhea, 25 Kan. 576; State v. Bohan, 15 Kan. 407. Ky.-Penman v. Com., 141 Ky. 660, 133 SW 540; Jett v. Com., 139 Ky. 794, 85 SW 1179, 27 KyL 603; Mount v. Com., 120 Ky. 398, 86 SW 707, 27 KyL 788; Howard v. Com., 26 SW 1, 15 KyL 873; Dilger v. Com., 88 Ky. 550, 11 SW 651, 11 KyL 67. La-State v. Pointdexter, 117 La. 380, 41 S 688; State v. Dent, 41 La. Ann. 1082, 7 S 694; State v. Ford, 37 La. Ann. 443. Mich.-Glazier V. Ingham Cir. Judge, 153 Mich. 481, 116 NW 1007; Peo. v. Swartz, 118 Mich. 292, 76 NW 491. Miss.-Butler v. State, 39 S 1005; Peeples v. State, 33 S 289: Tennison v. State, 79 Miss. 708, 31 S 421; Dillard v. State, 58 Miss. 368. Mo.-State v. Shaffer, 253 Mo. 320, 161 SW 805; State v. Anderson, 252 Mo. 83, 158 SW 817; State v. Barrington, 198 Mo. 23, 95 SW 235 [writ of error dism 205 U. S. 483, 26 SCt 582, 51 L. ed. 890]; State v. Swisher, 186 Mo. 1, 84 SW 911; State v. Wofford, 119 Mo. 408, 24 SW 1009; State v. Brownfield, 83 Mo. 448; State Kring, 11 Mo. A. 92 [aff 74 Mo. 612]; State v. Barton, 8 Mo. A. 15 [aff 71 Mo. 288]. V. | Nev.-State v. Casey, 34 Nev. 154, 117 P 5, 8 [quot Cycl. N. Y.-Peo. v. Mit hell, 168 N. Y. 604, 61 NE 182 [aff 49 App. Div. 531, 63 NYS 522]; Peo. v. Sammis, 3 Hun 560, 6 Thomps. & C. 328; Peo. v. Diamond, 36 Misc. 71, 72 NYS 179; Peo. v. Squire, 1 NYSt 534 [aff 14 Daly 154 (aff 107 N. Y. 593, 14 NE 820, 1 AmSR 893 [aff 145 U. S. 175, 12 SCt 880, 36 L. ed. 666])]; Peo. v. Baker, 3 AbbPr 42, 3 Park. Cr. 181; Peo. v. Long Island R. Co., 16 HowPr 106, 4 Park. Cr. 602; Peo. v. Wright, 5 How Pr 23, 3 CodeRep 75; Peo. v. Bodine, 7 Hill 147; Peo. v. Harris, 4 Den. 150; Peo. v. Sharp, 5 N. Y. Cr. 155. N. D.-State v. Boyd, 26 N. D. 224, 144 NW 232. Oh.-State v. Elliott, 11 Oh. Dec. (Reprint) 253, 25 CincLBul 366; Kappes v. State, 25 Oh. Cir. Ct. 723. Okl.-Pearce v. Terr., 11 Okl. 438, 68 P 504; Patswald v. U. S., 5 Okl. 351, 49 P 57. Or.-State v. Caseday, 58 Or. 429, 115 P 287; State v. Mizis, 48 Or. 165, 85 P 611, 86 P 361; State v. Armstrong, 43 Or. 207, 73 P 1022; State v. Pomeroy, 30 Or. 16, 46 P 797. S. C.-State v. Williams, 13 S. C. L. 383. Tex.-Streight v. State, 62 Tex. Cr. 453, 138 SW 742; Ferguson v. State, 61 Tex. Cr. 152, 136 SW 465; Knight v. State, 55 Tex. Cr. 243, 116 SW 56: Cason v. State, 52 Tex. Cr. 220, 106 SW 337; Adams v. State, 48 Tex. Cr. 452, 93 SW 116; Earles v. State, 47 Tex. Cr. 559, 85 SW 1; Alarcon v. State, 47 Tex. Cr. 415, 83 SW 1115; Reeves v. State, 47 Tex. Cr. 340, 83 SW 803; Connell v. State, 45 Tex. Cr. 142, 75 SW 512; Renfro v. State, 42 Tex. Cr. 393, 56 SW 1013; Red v. State, (Cr. A.) 53 SW 618; Meyers v. State, 39 Tex. Cr. 500, 46 SW 817; Harrison v. State, (Cr. A.) 43 SW 1002; Cravey v. State, 23 Tex. A. 677, 5 SW 162; Magee v. State, 14 Tex. A. 366; Dupree v. State, 2 Tex. A. 613. Va.-Muscoe v. Com., 87 Va. 460, 12 SE 790; Wormeley v. Com., 10 Gratt, (51 Va.) 658. Wash.-McAllister Wash. T. 360. W. Va.-State v. Greer, 22 W. Va. 800. V. Terr., 1 Wis.-Perrin v. State, 81 Wis. 135, 50 NW 516. Eng.-Rex v. Hunt, 3 B. & Ald. 444, 5 ECL 259, 106 Reprint 725, 2 Chit. 130, 18 ECL 547; Reg. v. Dunn, 11 Jur. 287. Ont.-Rex v. O'Gorman, 14 Ont. L. 102, 9 OntWR 928. And see supra § 306. [a] There are two circumstances, the existence of either of which should entitle defendant to a change of venue. The one is the impossibility of obtaining an impartial jury. Mont-State v. Russell, 13 Mont. The other is such a state of public 164, 32 P 854. excitement against defendant that Nebr.-Jahnke v. State, 68 Nebr. ' even an impartial jury would be a [b] The mere existence of widespread comment or of a widespread belief in the guilt of accused does not prevent accused from obtaining fair trial unless there exists in addition a real prejudice in the community which may warp the judgment of those surrounded by such prejudice; but where such real prejudice exists a change of place of trial will be granted. Peo. v. Hyde, 75 Misc. 407, 133 NYS 306 [aff 149 App. Div. 131, 133 NYS 7801. 83. Peo. v. Swift, 172 Mich. 473, 138 NW 662; Peo. v. Burke, 157 Mich. 108, 121 NW 282; Peo. v. Swartz, 118 Mich. 292, 76 NW 491; State v. Spotted Hawk, 22 Mont. 33, 55 P 1026; Peo. v. Bonier, 189 N. Y. 108, 81 NE 949. [a] Difficulty in obtaining a jury, although material as showing prejudice does not justify a change of venue. O'Berry v. State, 47 Fla. 75, 36 S 440; Peo. v. Swartz, 118 Mich. 292, 76 NW 491; State v. Olds, 19 Or. 397, 24 P 394; Moses v. State, 11 Humphr. (Tenn.) 232. 84. State v. Thomas, 250 Mo. 189, 157 SW 330. 85. Disqualification of judge to act generally see Judges [23 Cyc 575 et seq]. 86. Cal.-Peo. v. Williams, 24 Cal. 31; Peo. v. Mahoney, 18 Cal. 180. Del.-State v. Lynn, 19 Del. 316, 51 A 878. D. C.-In re Gassenheimer, 24 App. 312. Fla.-State v. King, 20 Fla. 19. Ill. Sampson v. Peo., 188 Ill. 592, 59 NE 427. Mich.-Campbell v. Jackson Cir. Judge, 155 Mich. 326, 118 NW 987. Oh.-Kappes v. State, 25 Oh. Cir. Ct. 723. Okl.-Stanley v. U. S., 1 Okl. 336, 33 P 1025. Tex.-Gaines v. State, 38 Tex. Cr. 202, 42 SW 385; Johnson v. State, 31 Tex. Cr. 456, 20 SW 985. 87. Ind. Leyner v. State, 8 Ind. 490. Mo.-State v. Spivey, 191 Mo. 87, 90 SW 81; State v. Callaway, 154 Mo. 91, 55 SW 444; State v. Anderson, 96 Mo. 241, 9 SW 636; Jim v. State, 3 Mo. 147; State v. Cowan, 160 Mo. A. 482, 140 SW 960. Nebr.-McCarthy v. State, 10 Nebr. 438, 6 NW 769. N. D.-State v. Boyd, 26 N. D. 224, 144 NW 232. Or.-Packwood v. State, 24 Or. 261, 33 P 674. S. D.-Sioux Falls v. Neeb, 20 S. D. 244, 105 NW 735. See also supra 306. [a] In Oklahoma (1) the fact that the prejudice of a trial judge is not mentioned in the statutes as a ground for disqualification is immaterial. Such disqualification rests upon constitutional grounds, and cannot be other competent evidence, and unless this is done the [b] A proceeding for the disbarment of an attorney has been held to be a "criminal prosecution" within the meaning of a statute authorizing a change of venue because of the prejudice of the judge. In re Peyton, 12 Kan. 398, 403. 88. State v. Morrison, 67 Kan, 144, 72 P 554; State v. Stark, 63 Kan. 529, 66 P 243, 54 LRA 910, 88 AmSR 251, Emporia v. Volmer, 12 Kan. 622. 89. Cal.-Peo. v. Mahoney, 18 Cal. 180. Iowa.-State v. La Grange, $4 Iowa 60, 62 NW 664; State v. Read, 49 Iowa 85. Kan.-State v. Stark, 63 Kan. 529, 66 P 243, 88 AmSR 251, 54 LRA 910; State v. Reno, 41 Kan. 674, 21 P 803; State v. Bohan, 19 Kan. 28 N. C.-State v. Johnson, 104 N. C. 780, 10 SE 257. S. D.-State v. Rodway, 1 S D. 575, 47 NW 1061; State v. Chapman, 1 S. D. 414, 47 NW 411, 10 LRA 432. 90. State v. Hale, 65 Iowa 575, 22 NW 682 (in passing sentence); State v. Tawney, 83 Kan. 603, 112 P 161; State v. Bohan, 19 Kan. 28 (in discussing testimony). 91. State v. La Grange, 94 Iowa 60, 62 NW 664; State v. Tawney, 81 Kan. 162, 105 P 218, 135 AmSR 355; State v. Parmenter, 70 Kan. 513, 79 P 123; State v. Crilly, 69 Kan. 802, 77 P 701; State v. Morrison, 67 Kan. 144, 72 P 554. is prejudiced,95 unless, under the statute, he has 2 [§ 313] 4. Application and Procedure-a. Jurisdiction to Change Venue. Only that court in which accused is called upon to plead has the jurisdiction to change the venue, ,99 unless, as is the rule in England and in some of the states, the proceedings have been removed by certiorari to a superior court.1 Under some statutes an application for a change of venue may be entertained by a special judge, or by a judge at chambers under certain cirsign reasons for changing the venue to a distant county instead of to an adjoining or nearby county. Ricks v. State 48 Tex. Cr. 264, 87 SW 1036. (7) The failure to transfer the case so far as a part of the defendants are concerned will not invalidate the transfer as to the others. Terry v. State, 45 Tex. Cr. 264, 76 SW 928: Stevens v. State, 42 Tex. Cr. 154, 59 SW 545. erroneous rulings against accused on 93. State v. Tawney, 83 Kan. 603, 95. 97. See the statutory provisions. [b] In Missouri it is discretion- [d] In federal court.-The "great inconvenience" which under the Federal Judiciary Act (1 St. at L. 88 § 29) will justify a change of venue in a capital case occurs where, during a trial for treason, the county in which the trial is had is in a state of insurrection and under military rule. Fries' Case, 9 F. Cas. No. 5,126, 3 Dall. 515, 1 L. ed. 701. 98. Osborn v. State, 24 Ark. 629. 99. Price v. State, 8 Gill (Md.) 295; Gandy v. State, 27 Nebr. 707, 43 NW 747, 44 NW 108; State v. McGehan, 27 Oh. St. 280; State v. Howard, 31 Vt. 414. [a] In Idaho the district courts have no power to transfer for trial to an adjoining county misdemeanor cases properly brought in a probate or a justice's court and appealed to a district court for trial de novo upon application of defendant or of the state. State v. Cowen, 29 Ida. 783, 162 P 674. [b] In New York, under Code Cr. Proc. §§ 344, 346, where an indictment for murder was transferred from the supreme court in Albany county to the Albany county court, and accused desired it sent to a term of the supreme court held in another county, on the ground that a fair trial could not be had in the county where it was pending, it was only necessary to apply to the supreme court at a special term in the district, upon notice to the district attorney; it was not necessary that the indictment first be sent back to the supreme court in Albany county. Peo. v. Green, 201 N. Y. 172, 94 NE 658. [c] In Texas (1) the legislature has given the judges of the district courts specific and ample authority and power of their own motion to change the venue in any case (Code Cr. Proc. art 626; Mayhew v. State, (Tex. Cr.) 155 SW 191; Nite v. State, 41 Tex. Cr. 340, 54 SW 763; Augustine v. State, 41 Tex. Cr. 59, 52 SW 77; Frizzell v. State, 30 Tex. A. 42, 16 SW 751; Bohannon v. State, 14 Tex. A. 271; Webb v. State, 9 Tex. A. 490: Cox v. State, 8 Tex. A. 254, 34 AmR 746; Brown v. State, 6 Tex. A. 286), (2) if it appears to the court that for any reason a fair and impartial trial cannot be had (Mayhew v. State, supra; Nite v. State, supra; Campbell v. State, 35 Tex. Cr. 160, 32 SW 774; Adams v. State, (Cr. A.) 23 SW 691; Woodson v. State, 24 Tex. A. 153, 6 SW 184), (3) or whenever it may become necessary in order to secure a speedy trial in a prosecution for rape (Griffey v. State, (Cr. A.) 56 SW 52). (4) This discretion is a judicial, not a personal, one. Walker v. State, 42 Tex. 360; Dupree v. State, 2 Tex. A. 613; Mayhew v. State, supra. (5) But, being a discretion created and confided by the law, it will not be revised in the absence of any showing that it has been abused to the prejudice of de92. See cases infra this note. fendant. Mayhew v. State, supra. [a] Illustrations.-(1) Refusal to (6) It is only necessary for the judge admit defendant to bail. State V. to assign reasons for changing the Alexander, 66 Mo. 148. (2) Alleged venue; it is not necessary that he as- county. State v. Higgerson, 110 Mo. [a] Opinion given on hypothetical case. Where accused complained of the disqualification of a judge on the grounds that the sheriff had told accused's counsel that the judge had told him that the facts and details in the case would make defendant guilty, but the judge stated that the case was never mentioned to him, but the sheriff had put a hypothetical case to him and had asked whether that would be a violation of the law, the judge was not disqualified. Morton v. State, (Tex. Cr.) 107 SW 549; Owens v. State, 52 Tex. Cr. 362, 107 SW 549. 1. Peo. v. Vermilyea, 7 Cow. (N. Y.) 108; Com. v. Romenus, 205 Pa. 420, 54 A 1095; Com. v. Delamater, 141 Pa. 210, 22 A 1098; Com. v. Balph, 111 Pa. 365, 3 A 220. 2. See Mo. Rev. St. (1889) § 4175. [a] Where a statute provides for the appointment of a special judge, where the judge of the court is prejudiced against accused, the special judge either may try the case himself or may grant a change of venue, if in his discretion he shall be satisfied that accused cannot have fair and impartial trial in the a eumstances. But it has been held that the election of a special judge merely for the purpose of deeiding a motion for a change of venue is not authorized.* [§ 314] b. b. Application-(1) In General. A petition and affidavit for a change of venue may be dispensed with and the change may be made by consent. A change of venue may be granted on an oral application, if assented to by the prosecution, unless a written application, in some jurisdictions required to be verified by the oath of defendant, is required by statute.8 7 6 Amendment. A request to amend a motion for a change of venue should state in what respect it is desired to amend the motion.❞ New application. Where, after an application for a change of venue is granted, a new indictment is found and accused is arrested thereunder, and the former indictment is quashed, a new application for a change of venue is necessary;10 and the same is true where a new trial has been ordered on a reversal for an abuse of discretion in refusing a change of venue.11 Nature of proceeding. It has been held that application for a change of venue is a proceeding of a civil nature and does not fall within the cate 213, 19 SW 624. See also State v. Shipman, 93 Mo. 147, 6 SW 97. 3. See infra this note. [a] In South Carolina (1) Code Civ. Proc. § 147 states three cases in which the place of trial may be changed: First, when the county designated for that purpose in the complaint is not the proper county; second, when there is reason to believe that an impartial trial cannot be had therein; and third, when the convenience of witnesses and the ends of justice would be promoted by the change. A motion for change of venue may be tried at chambers on the first and the last grounds above. Fishburne v. Minott, 72 S. C. 572, 52 SE 646; Utsey v. Charleston, etc., R. Co., 38 S. C. 399, 17 SE 141. (2) But a judge at chambers has no jurisdiction to remove a case on the second ground. Castles v. Lancaster County, 74 S. C. 512, 55 SE 115; Willoughby v. Northeastern, etc., R. Co., 46 S. C. 317, 24 SE 308. 4. State v. Bulling, 100 Mo. 87, 12 SW 356. 5. Peo. v. Scates, 4 Ill. 351; Oborn v. State, 143 Wis. 249, 126 NW 737, 31 LRANS 966. [a] Stipulation.-But in Missouri a criminal action cannot be removed from a county having jurisdiction to another county by mere stipulation of the parties. State v. Buck, 120 Mo. 479, 25 SW 573; State v. Buck, 108 Mo. 622, 18 SW 1113. 6. Ill-Brennan v. Peo., 15 Ill. 511. Kan.-State v. Potter, 16 Kan. 80. La-State v. Peterson, 2 La. Ann. 921. Miss.-Purvis v. State, 71 Miss. 706, 14 S 268, N. M. Terr. v. Taylor, 11 N. M. 588, 71 P 489. 7. Huckabee v. State, 168 Ala. 27, 53 S 251: Young v. Peo., 54 Colo. 293, 130 P 1011; Taylor v. Com., 10 Ky. Op. 480; State v. Witherspoon, 231 Mo. 706, 133 SW 323. 8. Purvis v. State, 71 Miss. 706, 14 S 268 (holding that an application not in writing as required by statute should be denied). 9. Kinslow v. State, 85 Ark, 514, 109 SW 524. 10. State v. Normile, 108 Mo. 121, 18 SW 975. 11. State v. Nash, 7 Iowa 347. 12. Wilburn v. State, 140 Ga. 138, 78 SE 819. 13. Purvis v. State, 71 Miss. 706, 12 gory of criminal cases." [315] (2) Form the Requisites. The applicant for a change of venue must comply with the requirements of the statute authorizing the change,13 and must show in his application the existence of the ground upon which the application is based;14 but it is generally held that, if the application or affidavit substantially complies with the statute permitting the change, it is sufficient.15 Facts must be shown from which the court can deduce the conclusion that the ground relied on for the change actually exists;16 and as a rule mere belief, opinions, or conclusions will not be sufficient to warrant the court in exercising its power,17 unless the information upon which the belief is founded, or the grounds upon which the opinions or conclusions are based, are sufficiently shown.18 An application for a change of venue must be in good faith, and not for the purpose of delay;19 and this must be made to appear either from the facts set forth in the affidavit 20 or by a positive statement to that effect.21 The affidavit must state also when the facts which call for a change of venue came to deponent's knowledge.22 An application to change to a particular county may be overruled, the proper practice being to move for a change to any county in which a fair Sask.-Rex v. Stauffer, 4 Sask. L. 284, 19 CanCrCas 205. 14 S 268; State v. Turlington, 102 Mo. | 192. 14. Cal.-Peo. v. Baker, 1 Cal. 403. Ida. State v. Reed, 3 lda. 754, 35 P 706. Ky.-Wilkerson v. Com., 88 Ky. 29, 9 SW 836, 10 KyL 656. Nev.-State v. Lawry, 4 Nev. 161. 148. W. Va.-State v. Greer, 22 W. Va. 800. Wis.-Winn v. State, 82 Wis. 571, 52 NW 775, 15. Albert v. State, 66 Md. 325, 7 A 697, 59 AmR 159. 16. Ala. Jacobs v. State, 146 Ala. 103, 42 S 70; Byers v. State, 105 Ala. 31, 16 S 716; Jackson v. State, 104 Ala. 1, 16 S 523; Salm v. State, 89 Ala. 56, 8 S 66; Hawes v. State, 88 Ala. 37, 7 S 302; Seams v. State, 84 Ala. 410, 4 S 521; Birdsong v. State, 47 Ala. 68. Cal.-Peo. v. Yoakum, 53 Cal. 566; Peo. v. Congleton, 44 Cal. 92; Peo. v. Shuler, 28 Cal. 490; Peo. v. Williams, 24 Cai. 31; Peo. v. Graham, 21 Cal. 261; Peo. v. Mahoney, 18 Cal. 180; Peo. v. McCauley, 1 Cal. 379. Colo.-Young v. Peo., 54 Colo. 293, 130 P 1011; Hughes v. Peo., 5 Colo. 436; Solander v. Peo., 2 Colo. 48. Dak. Terr. v. Egan, 3 Dak. 119, 13 NW 568. See Pettit v. State, 135 Ind. 393, 34 NE 1118. [a] Form of application and affidavit for change of venue by reason of prejudice see State v. Shipman, 93 Mo 147, 6 SW 97; State v. Thomas, 32 Mo. A. 159. [b] Form of application by state see State v. Wheat, 111 La. 860, 35 S 955. 17. Cal.-Peo. v. Yoakum, 53 Cal. 566; Peo. v. Congleton, 44 Cal. 92; Peo. v. Shuler, 28 Cal. 490. Colo.-Young v. Peo., 54 Colo. 293, 130 P 1011. 88. Iowa.-State v. Mewherter, 46 Iowa Md.-Downs v. State, 111 Md. 241, 73 A 893, 18 AnnCas 786. Mo.-State v. Rose, 193 SW 811; State v. Vickers, 209 Mo. 12, 106 SW 999; State v. Burgess, 78 Mo. 234. N. Y.-Peo. v. Hyde, 75 Misc. 407, 133 NYS 306 [aff 149 App. Div. 131, 133 NYS 780]; Peo. v. Vermilyea, 7 Cow. 108. Ont.-Reg. v. Ponton, 2 CanCrCas 192. Sask.-Rex v. Stauffer, 4 Sask. L. 284, 19 CanCrCas 205. 18. Ala. Jacobs v. State, 146 Ala. 103, 42 S 70. Cal.-Peo. v. Shuler, 28 Cal. 490. Colo.-Christ v. Peo., 3 Colo. 394; Solander v. Peo., 2.Colo. 48. Ill-Jamison v. Peo., 145 Ill. 357, 34 NE 486; Peo. v. Walker, 179 Ill. Del.-State v. Windsor, 5 Del. 512; State v. Burris, 4 Del. 582. Fla. Irvin v. State, 19 Fla. 872; A. 455.Barber v. State, 13 Fla. 675. Ill-Jamison v. Peo., 145 Ill. 357, 34 NE 486; Myers v. Peo., 26 Ill. 173. Iowa.-State v. Mewherter, 46 Iowa 88. Kan.-State v. Elliott, 62 Kan. 869, 64 P 1116; State v. Knadler, 40 Kan. 359, 19 P 923. Md.-Downs v. State, 111 Md. 241, N. M.-Terr. v. Kelly, 2 N. M. 292. N. C.-State v. Seaborn, 15 N. C. 305; State v. Twitty, 9 N. C. 248. Tenn.-Honeycutt v. State, 8 Baxt. 371. Eng.-Rex v. Gyde, 72 J. P. 504. Md.-Downs v. State, 111 Md. 241, 73 A 893, 18 AnnCas 786. Nebr.-Simmerman V. State, 16 Nebr. 615, 21 NW_387. N. C.-State v. Seaborn, 15 N. C. 305; State v. Twitty, 9 N. C. 248. 19. Crocker v. Justices of Super. Ct., 208 Mass. 162, 94 NE 369, 21 Ann Cas 1061; Packwood v. State, 24 Or. 261, 33 P 674. 20. Packwood v. State, 24 Or. 261, 33 P 674. 21. Robertson v. State, 64 Fla. 437, 60 S 118. 22. Barrows v. Peo., 11 Ill. 121; State v. Caudle, 174 Mo. 388, 74 SW 621; State v. Clevenger, 156 Mo. 190, 56 SW 1078; State v. Barrett, 54 Mo. 457; State V. Burns, 54 Mo. 274. |