State v. Wofford

• Decision Date: 06 January 1894
• Citation: 24 S.W. 764,119 Mo. 375
• Parties: STATE ex rel. VICKERY v. WOFFORD, Judge.
• Court: Missouri Supreme Court

24 S.W. 764

119 Mo. 375

STATE ex rel. VICKERY v. WOFFORD, Judge.

Supreme Court of Missouri, Division No. 2.

January 6, 1894.

CRIMINAL LAW — CHANGE OF VENUE — RIGHTS OF DEFENDANT.

1. The removal of a criminal trial from Kansas City to the city of Independence, under Rev. St. 1889, p. 2207, § 13, on affidavit that he cannot get a fair trial because of the prejudice in the minds of the people in the city where the action is pending, is a change of venue within the statutory prohibition against a second change of venue.

2. Such a construction of the statute does not deny defendant a right vouchsafed to other persons charged with felonies in other counties, as he could have asked a change of venue from Jackson county, and obtained it, on the same proofs whereby he obtained a removal to Independence.

Application by the state, on the relation of Horace N. Vickery, for mandamus to compel John W. Wofford, judge of the criminal court of Jackson county, to grant relator a change of venue from Jackson county. Denied.

Ralph S. Latshaw and John W. Beebe, for relator. R. F. Walker, Atty. Gen., Morton Jourdan, Asst. Atty. Gen., and Marcy K. Brown, Pros. Atty., for respondent.

GANTT, P. J.

At the September term, 1893, of the criminal court of Jackson county, at Kansas City, the relator, Horace N. Vickery, was indicted for embezzlement, and was duly arraigned. He then filed his affidavit, supported by the affidavits of two others, averring prejudice in the minds of the inhabitants of Kansas City against him, and asked for a change of venue to Independence, in said county, under and by virtue of section 13 of the special act creating said court, (Rev. St. 1889, p. 2207.) The change was granted, and the cause promptly removed to Independence. At the November term, 1893, of the said court at Independence, the relator filed his petition and affidavit for a change of venue from Jackson county, which petition and affidavit were sufficient in form, and were supported by the affidavits in proper form of two credible, disinterested citizens of Jackson county, after reasonable notice to the prosecuting attorney. The court refused to grant the change from Jackson county, on the ground that defendant had already had the cause removed from Kansas City to Independence, and, under Rev. St. 1889, § 4163, had no right to another removal of it. Relator now seeks by mandamus to compel the court to grant him another and second change of venue, and asks for a change of venue from Jackson county.

The criminal court of Jackson county was created by an act of the legislature of 1871, (Laws 1871, p. 110.) By the thirteenth section of that act, as amended February 8, 1872, (Laws 1871-72, p. 282,) it was provided that any person under indictment in the criminal court of said county for the crime of felony shall be entitled to have his trial removed from the city of Kansas to the city of Independence, or from the city of Independence to the city of Kansas, in the same court, upon application, accompanied by his affidavit, that a fair trial cannot be had on account of the prejudice in the minds of the people against him in the city where the cause is pending. In 1881 an act was passed which, by its terms, included "all counties wherein terms of the criminal court were held at more places than one," and required that all applications for change of venue from one of such places to another should be governed by the same rules "as to practice and proof as were prescribed by the Revised Statutes of 1879 for changes of venue in criminal causes from one county or circuit to another." Laws 1881, p. 119. Under the various sections of the Revision of 1879, a change of venue could be obtained by proving to the satisfaction of the court that a fair trial could not be had in the county where the indictment was found. Rev. St. 1879, §§ 1856-1861 et seq. By the Revision of 1889 (section 4156) the general law on the subject was again amended, so that if a defendant files his petition setting forth the facts entitling him to a change of venue, supported by his own affidavit and the affidavits of two or more credible, disinterested citizens of the county, and shall give the prosecuting attorney reasonable notice of his application, he is entitled, without further proof, to a change of venue. By section 4153, these general provisions apply to ...