WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
LESLIE E. SALTER, Judge presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 24, 1956.
Defendant Edward Chambers has prosecuted this writ of error from a judgment of the criminal court of Cook County, entered on a jury verdict finding him guilty of grand larceny and sentencing him to the penitentiary for a term of not less than five, nor more than ten years. Defendant contends that the judgment should be reversed on the ground that the criminal court erred in denying his petition for change of venue, and consequently, all orders entered by the court thereafter were void.
The sole issue in this cause is whether the trial court's denial of defendant's petition for change of venue, under the circumstances herein, constitutes reversible error.
It appears from the record that on November 18, 1953, defendant, Edward Chambers, was indicted by the grand jury of Cook County, jointly with two other persons, for the larceny of certain wearing apparel of the value of $195.80, which was alleged to be the property of Wieboldt Stores, Inc. On November 24, 1953, defendant entered a plea of not guilty and was admitted to bail. The cause was assigned for trial on December 14, 1953, but was continued some eleven times by agreement or on motion of defendant, until it was finally assigned for trial on November 29, 1954.
On the morning of November 29, 1954, when the case was called for trial, defendant presented a petition to suppress evidence, alleging an unlawful search and seizure. After hearing testimony of witnesses, including defendant, in support of and in opposition to the motion, the court at noon denied defendant's motion to suppress, and adjourned until 1:30 P.M., ordering a jury called to hear the case. Upon reconvening, and with the jury waiting to be called to the box, defendant presented his motion for change of venue. The verified petition represents in substance that the cause was being held for trial before Judge Leslie Salter and that petitioners could not get a fair and impartial trial because he was prejudiced against them; that the knowledge of said prejudice came to petitioners at 12:00 o'clock noon on November 29, 1954; and that if the cause were to be tried before the Honorable Judges Arthur J. Murphy, John J. Lyons, and Walker Butler, petitioners feel that they cannot get a fair and impartial trial before said judges. The petition was denied by the court, and the case proceeded to trial, in which defendant was found guilty by the verdict of the jury, upon which judgment was entered and sentence imposed.
In this writ of error proceeding defendant argues that inasmuch as the petition for change of venue conformed to the statutory requirements and was presented as soon as the prejudice of the judge became apparent, which was after the ruling on the motion to suppress the evidence, but before trial, the court had the absolute duty under the statute to grant the motion and the denial thereof constitutes reversible error. The prosecution, however, asserts that the petition for change of venue was not executed in conformity with the statute, since it was not supported by a proper affidavit, and represents that more than two judges were prejudiced; and furthermore that it was offered too late in the proceeding inasmuch as the court had already adjudicated one of the issues in the cause.
The relevant statutory provision pertaining to change of venue in criminal cases (Ill. Rev. Stat. 1953, chap. 146, par. 21,) provides: "When the cause for a change of venue is the prejudice of the judge or any two of them against the defendant or his attorney, the petition shall be accompanied by the affidavit of the defendant or his attorney, stating that he believes the judge, or any two of them, as the case may be, are so prejudiced against the applicant or his attorney, that either cannot have a fair and impartial trial, and thereupon the case may be tried by any other of the circuit judges of the circuit in which the case is pending, and the venue shall not be changed from the county in which the indictment is found or the information is filed, in such case."
The statute further provides that no change of venue shall be granted more than 30 days after the earliest day 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 expiration of such thirty days; and also that only one change of venue shall be allowed. Ill. Rev. Stat. 1953, chap. 146, pars. 25, 26.
The courts, in construing the venue provisions, have reiterated that they should receive a liberal rather than a strict construction and should be construed to promote rather than to defeat the right to a change of venue, particularly where prejudice on the part of the judge is charged. (People v. McWilliams, 350 Ill. 628; People v. Dieckman, 404 Ill. 161.) Nevertheless, the statute cannot be construed so as to contravene express provisions (People v. Touhy, 361 Ill. 332,) and the applicant must comply with the statutory requirements. People v. Dieckman.
Although the verified petition for change of venue herein makes no allegation that the recitals are true, nor is that omission supplied by the jurat attached to the petition, which simply certifies that it was sworn to, this defect alone would not render the petition insufficient. However, the allegation of the prejudice of more than two judges in a petition for change of venue has been held to violate the terms of the statute, and to warrant a denial of the petition. People v. Dunn, 276 Ill. App. 437.
In People v. Dunn, 276 Ill. App. 437, the court, in denying defendant's petition for change of venue naming all of the judges of the criminal court, held that under a reasonable construction of the act an applicant for a change of venue on the ground of prejudice of the judge cannot name more than two judges in his petition in whatever court the application is made. The court noted that the fact that Cook County has a great many more judges does not affect the requirement that only two judges may be named, and that, if it were permissible to name more than two judges, the section prohibiting a change of venue from the county would be circumvented in circuits having only three judges, since the petition would effect a removal from the county as well as the circuit. The court stated: "Regardless therefore of whether there were proper affidavits to support the petition or not, it was properly denied because on its face it asks not only for a change of venue from all the judges authorized to try the case but from more than two of them."
In addition to the foregoing defect in the petition for change of venue herein, the prosecution further contends that the petition was properly denied on the ground that it was presented too late in the proceeding.
It is uncontroverted that the law requires a petition for change of venue to be offered at the earliest practical moment, and that a petition filed after the hearing has commenced will be denied on the ground that it is filed too late. Commissioners of Drainage District v. Goembel, 383 Ill. 323; Flassig v. Newman, 317 Ill. App. 635; People v. Ayers, 250 ...