State v. Ballew
| Decision Date | 17 September 1928 |
| Docket Number | No. 4481.,4481. |
| Parties | STATE v. BALLEW. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.
Ezra Ballew was convicted of petit larceny, and he appeals. Affirmed.
Cope & Tedrick, of Poplar Bluff, for appellant.
Defendant was convicted of petit larceny, and appealed.
The only question raised is the alleged error of the trial court in refusing to grant a change of venue. Defendant and two others were jointly charged by information with grand larceny. July 14, 1927, during the regular July term, all the defendants waived formal arraignment and entered pleas of not guilty and announced ready for trial. Thereafter and on the same day defendants by leave withdrew their pleas of not guilty. Upon the pleas of not guilty being withdrawn, defendant moved for a severance, which was granted. After the severance, defendant filed motion to quash the information, which motion was overruled. Thereupon and on same day, July 14th, defendant filed an affidavit for a change of venue, alleging the bias and prejudice of the judge. The affidavit was supported by the affidavits of two persons alleged to be reputable and residents of the county and not of kin to, or counsel for, defendant. The affidavit for a change of venue was overruled, and defendant went to trial.
The only assignment in the motion for a new trial necessary to consider is the alleged error in overruling the application and affidavit for a change of venue. The affidavit does not allege when the defendant discovered the alleged prejudice of the judge, and under the facts disclosed pertaining to the application and affidavit such allegation was essential, and, absent such allegation, the affidavit for a change of venue was not sufficient. State v. Caudle, 174 Mo. 388, 74 S. W. 621; State ex rel. Lafferty v. Landon (Mo. App.) 289 S. W. 661, loc. cit. 662, and cases cited.
The judgment should be affirmed, and it is so ordered.
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State v. Irvine
...221; State v. Yowell, 55 S.W.2d 994. (2) Affidavit for change of venue, filed, was insufficient and court's action discretionary. State v. Ballew, 9 S.W.2d 253; State v. Caudle, 174 Mo. 391; State ex rel. Landon, 28 S.W. 662; State v. Bryant, 24 S.W.2d 1010; State v. Witherspoon, 231 Mo. 71......
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