FORM OF AFFIDAVIT TO ACCOMPANY PETITION.

State of Illinois,
County.

C. D.
ats.

The People of the

State of Illinois.

E. F. and G. H,' being each duly sworn, each for himself on his oath severally says, that he is a resident of the said county, and not of kin or counsel to C. D. mentioned in the foregoing (or "annexed") pe tition; and that he believes that the Hon. --, the judge of the said cour! referred to in the said petition, is so prejudiced against the said C. D., ta he cannot have a fair and impartial trial in the above entitled cause refer red to in said petition.

Subscribed and sworn to before me

this day of - A. D. 18-.

W. T. B., Clerk.

E. F.

G. H.

8862. When Cause Prejudice of Inhabitants.- "When the cause for the change of venue is the prejudice of the inhabitants of the county, against the defendant, his petition shall set forth the facts on which he founds his belief, and the attorney, on behalf of the people, may deny the facts stated in the petition, and support his denial by counter affidavits, and the judge may grant or deny the petition as shall appear to be according to the right of the case."2

FORM OF PETITION FOR A CHANGE OF VENUE BECAUSE THE INHABITANTS OF THE COUNTY ARE PREJUDICED AGAINST THE DEFENDANT.

State of Tilinois,} }s

C. D.
ads.

The People of the

State of Illinois.

SS.

C. D., the defendant in the above entitled case, re spectfully represents to the judge of the said court, that he fears and verily believes that he will not receive a fair and impartial trial in this court in the above entitled case, because the inhabitants of

1 Probably the court will presume that the persons making the affidavit are reputable, unless the contrary is shown, though it may be safer to state such fact in the petition until the question shall be judicially settled.

2 R. R., 1095, § 22. For the construction of the statute of Iowa, see State v. Nash, 7 Iowa, 347.

said

county, in which the said case is pending, are prejudiced against him; that he founds his belief as to such prejudice on the following facts, to wit. ;

1. That, etc. (insert the facts on which the belief is founded); and that petitioner did not ascertain the existence of such prejudice until within the last days. Petitioner therefore prays for a change of venue in this case, in pursuance of the statute in such case made and provided.

State of Illinois,

County. 8

C. D.

C. D., the above-named petitioner, being duly sworn, on his oath says, that the foregoing petition is true in substance and matter of fact.

Subscribed and sworn before me day of

this

A. D. 18-.

G. B., Clerk.

C. D.

§ 863. When Application may be Made.--"The application may be made to the court in which the case is pending in term time or to the judge thereof in vacation, reasonable notice of the application having been given to the state's attorney.'

991

§864. Not After First Term Unless, etc.-"No application for a change of venue made after the first term shall be allowed unless the applicant shall have given to the state's attorney at least ten days' previous notice of his intention to make such application, except where the causes have arisen or come to the knowledge of the applicant within less than ten days before the making of the application."

§865. Further Exception.-"No change of venue shall be granted after the first term at which the applicant might have been heard, unless he shall show that the causes for which a change is asked have arisen or come to his knowledge since the term at which the application might have been made."

§ 866. Notice.-An application for a change of venue must be denied, unless notice of the motion therefor has been given

R. S., 1095, § 23.

2 Id., 1096, § 24; Gilson v. Powers, 16 Ills., 357.

'R. S., 1096, § 25.

or waived. And such notice must be given at the earliest period. If the cause is known in vacation, notice should be given and the application should be made to the judge at chambers. Where the petition states that "the causes rendering a change necessary came to the knowledge of the petitioners within less that ten days past," one day's notice of the application for a change of venue was held not to be sufficient. The statute requires the notice to be reasonable and the length of time necessary to constitute a reasonable notice, will in some degree depend upon the peculiar circumstances of each particular case, and must necessarily be left to the legal discretion of the judge or court to which the application is made."

8867. When Must be Granted.--When the application for a change of venue is made because the judge is prejudiced and the prisoner has shown a clear right to such change of venue, it is error to deny it, and in such a case all subsequent proceedings of trial and conviction will be set aside and the cause remanded and the prisoner placed in statu quo, but where such application is made because the inhabitants of the county are prejudiced against the defendant under the present statute the judge may grant or deny the petition according to the right of the case. When the reasons for a change of venue cease to exist, the necessity and the right to change

1 Hunt o. Tinkham, 21 Ills., 639; Moore v. Ellsworth, 51 Ills., 308; Marble v. Bonhotel, 35 Ills., 240; Graves v. Shoeffelt, 60 Ills., 462; Preston v. Winter, 20 Iowa, 264.

2 Moss v. Johnson, 22 Ills., 333; Kelley v. Downs, 29 Ills., 74; and see Dean v. White, 5 Iowa, 266.

5

Berry v. Wilkinson, 1 Scam., 164; Kelley v. Downs, 29 Ills., 74.

Barrows v. People, 11 Ills., 121; McGoon v. Little, 2 Gilm., 42; Pertcet v. People, 65 Ills., 230; Freleigh v. State, 8 Mo., 611; Clark v. People, 1 Scam., 120; Walsh v. Ray, 38 Ills., 30; Rafferty v. People, 66 Ills., 118; Cass v. State, 2 Greene Iowa, 353; Welsh v. Savery, 4 Iowa, 241; Brener v. Frazier, 8 Iowa, 77.

7 R. S., 1095, § 22; Gray v. People, 26 Ills., 345; State v. Mooney, 10 Iowa, 507; State v. Arnold, 12 Iowa, 480; State v. Ingalls, 17 Iowa, 8; State v. Baldy, 17 Iowa, 39: State v. Ostrander, 18 Iowa, 447; State v. Wright, 19

also cease. It has been held to be a safe and judicious practice where a change is asked because of the prejudice of the inhabitants of the county against the defendant to require a plea to be entered before the change of venue is awarded.? In making an order for a change of venue the court has no authority to impose any terms upon the party applying for the same, such as the payment of costs.3

§ 868. Supplementary Affidavits.-On an application for a change of venue it is within the province of the court to determine whether anything beyond the petition shall be considered. Supplementary affidavits in aid of such petition need not be heard. If, however, the cause for the change of venue is the prejudice of the inhabitants of the county against the defendant, the attorney on behalf of the people may deny the facts stated in the petition and support his denial by counter affidavits.5

$869. By Consent.

A change of venue may be awarded in a criminal case by consent, without requiring a petition or affidavit to be filed for that purpose. 6

$870. Only One Change. "No more than one change of venue shall be granted to the same defendant."

$871. When Change Granted in Vacation. "When a change of venue is granted in vacation, the judge granting it shall immediately transmit the petition and affidavits and his order directing the change of venue to the clerk of the court, who shall file the same in his office and make an entry of such order on the records of the court."

Iowa, 94; State v. Hutchinson, 27 Iowa, 212; State v. Freeman, 27 Iowa, 333; State v. Collins, 32 Iowa, 42; State v. Felter, 32 Iowa, 49.

Myers v. Walker, 31 Ills., 353.

' Gardiner v. People, 3 Scam., 88; Gilson v. Powers, 16 Ills., 355.

Bellingall v. Duncan, 2 Gilm., 591.

People v. Scates, 3 Scam., 351; Brennan v. People, 15 Ills., 511; Pierson

v. Finney, 37 Ills., 29; see also Davidson v. Wheeler, Morris Iowa, 238;

Johnson v. Von Kettler, 66 Ills., 63.

R. S., 1096, § 26.

* Id., § 27.

§872. Transmitting Papers, etc." In all cases of change of venue, the clerk of the court from which the change is granted shall immediately make a full transcript of the record and proceedings in the case, and of the petition, affidavits and order for the change of venue, and transmit the same, together with all papers filed in the case, including the indictment and recognizances of defendant and all witnesses, to the proper court: Provided, that when the change is granted to a part but not all of several defendants, a certified copy of the indictment or information, and of the other papers in the case, shall be transmitted to the court to which the change of venue is ordered, and such certified copies shall stand as the originals. Such transcript and papers may be transmitted by mail or in such other way as the court or judge may direct.” §873. Filing Transcripts, etc. - Docketing Cause, etc. "The clerk of the court to which the venue is changed shall file the transcript and papers transmitted to him, and docket the case; and such case shall be proceeded in and determined in all things, as well before as after judgment, as if it had originated in such court."

874. Effect of Omission to Transmit a Proper Transcript of the Record. Where the clerk omits to send a correct transcript of the record and proceedings in the case, and the petition with the proper papers to the court to which the change of venue is taken, it is the duty of the court on application of the state's attorney, to grant a rule on the clerk to certify and transmit the proper papers, and stay the proceedings until the rule can be complied with; and if a motion is made to dismiss the case wherein the venue has been changed, because the proper papers have not been transmitted, the case will be dismissed unless a cross motion be interposed for a rule upon

1 R. S., 1096, § 28. The amendment of the certificate by the clerk of the county, from which the change was taken after the papers had been filed in the other county, was held not to be error. State v. Gibson, 29 Iowa, 295.

2 R. S., 1096, § 29. It is not erroneous after a change of venue upon a conviction for a capital crime, for the court to order that the prisoner remain in the jail of the county where he was tried until the time of the execution of the sentence of death. Jackson v. People, 18 Ills., 272.