State v. Bradford , 314 Mo. 684 ( 1926 )

I concur in the result reached by RAILEY, C., in this case, but do not agree with him in the construction of Section 3973, Revised Statutes 1919, amended by the Act of 1921Change of (Laws 1921, p. 206). The section reads as follows:Venue.

"Section 3973. Petition for change of venue must be proved andmay be rebutted. The petition of the applicant for a change of venue shall set forth the facts or grounds upon which such change is sought, and such petition shall be supported by the affidavit of petitioner and the affidavit of at least twocredible disinterested citizens of the county where said cause is pending and the truth of the allegations thereof shall be proved, to the satisfaction of the court, by legal and competent evidence, and the prosecuting attorney may in such case offer evidence in rebuttal of that submitted in support of such application; the court, or judge in vacation, shall fix the number of witnesses for which the State or county may be liable;provided, in all cases in counties in this State which now have or may hereafter have a population of less than seventy-five thousand inhabitants if such petition for change of venue issupported by the affidavits of five or more credible disinterested citizens residing in different neighborhoods of the county where said cause is pending, then the court or judge in vacation, shall grant such change of venue, as of course, without additional proof; provided further, that reasonable previous notice of such application shall in all cases be given to the prosecuting attorney, and provided further, that if the facts alleged as the ground of the application be within the knowledge of the court or judge, he may order such removal of the cause without any formal proof or the filing of affidavit; and provided further, that if the application shall allege prejudice of the inhabitants of more than one county in the circuit in which the case is pending, the court may, upon proof of the allegations as herein provided for, order the case sent to some county in the same or some other circuit where such causes do not exist."

If the petition for change of venue is supported by the affidavits of two disinterested citizens, proof may be offered upon which the court will determine whether to grant the change of venue. But if the petition for change is supported by the affidavits of five disinterested citizens in different neighborhoods, then the change of venue shall be granted without additional proof. That does not mean that the five affidavits shall be filed in addition to the two affidavits, because the same language is used with reference to both. It is whether the petition is "supported" by the affidavits of two citizens, or "supported" by the affidavits of five citizens, and those affidavits filed with the petition when it is presented. The five affidavits take the place of the two affidavits, and also dispense with additional proof. These five affidavits must come from citizens in different neighborhoods of the county. Therefore a joint affidavit would not satisfy the statute; there must be five separate affidavits which show the situation in five different neighborhoods of the county. When those five affidavits coming from five different quarters of the county show that prejudice exists against the defendant, then under the statute the prejudice is sufficient to authorize the change of venue without further proof. Therefore, the joint affidavit filed in this case is insufficient, and the ruling in respect to its insufficiency was proper.

For these reasons I concur in affirming the judgment.

Blair, J., concurs in these views.