Writ of Error from the Supreme Court to the County Court of
Warren county; the Hon. SCOTT I. KLUKOS, Judge, presiding.
Reversed and remanded.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
The State's Attorney of Warren County, Illinois, on February 23, 1955, filed in the County Court of that county a verified information charging that the defendant Henry Gregory did on February 23, 1955, operate a motor vehicle upon a public highway in said county while under the influence of intoxicating liquor. The defendant was released on bond and the cause continued to March 1, 1955, and for various reasons was continued from time to time thereafter and finally set for trial at 9:00 o'clock A.M., June 9, 1955.
Prior to the commencement of the trial, attorney Theodore Stansell, who had been representing defendant, made an oral motion to withdraw as his attorney. This motion was granted. Whereupon, attorney Frederick H. Lauder entered his appearance as attorney for the defendant.
Defendant then filed a written motion for a continuance on the ground that he was not prepared to proceed to trial on that date because his recently retained attorney was unfamiliar with the facts of his case, and that further time was needed to prepare his defense. The court denied the motion for continuance. Defendant then filed a written motion and affidavit for a change of venue from the judge. The motion for the change of venue was denied, and the cause was tried before a jury resulting in a verdict finding the defendant guilty as charged in the information.
Judgment was entered on the verdict and motions for a new trial and in arrest of judgment having been denied, a writ of error was sued out of the Supreme Court of Illinois, to the County Court of Warren county, to reverse the judgment of conviction against the defendant and the cause was transferred to this court by the Supreme Court without opinion.
Many errors have been assigned as grounds for reversal, but it would serve no useful purpose to discuss all of them.
Plaintiff in error, hereinafter referred to as defendant, contends that the trial court erred in denying his application for change of venue on account of the prejudice of the judge.
It is insisted on the part of the defendant in error, hereinafter referred to as the People, that notice of the application for change of venue was not given as prescribed by statute, and further that the application came too late and was made solely for delay.
The statute (Ill. Rev. Stat. 1955, Chap. 146, Par. 21), provides for a change of venue upon the filing of an affidavit of prejudice.
The statute further provides that application may be made to the court in which the case is pending, reasonable notice of the application having been given to the State's Attorney. The statute also provides that the application is barred if made more than thirty days after the earliest day at which the applicant might have been heard, 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. It also provides that no change of venue shall be granted more than thirty days after the earliest date 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. Ill. Rev. Stats. 1955, Chap. 146, Pars. 23, 24, 25.
The right to a change of venue from the judge in a criminal case on compliance with the statute is absolute. People v. Cohen, 268 Ill. 416, 109 N.E. 259; Cantwell v. People, 138 Ill. 602, 28 N.E. 964.
In the instant case the defendant filed his application, accompanied by an affidavit for a change of venue, on the morning that the trial was to commence and in the affidavit filed with the application the defendant stated that he believed the judge was prejudiced against him and that he could not receive a fair trial before the presiding judge, and further stated that this information came to his knowledge on that date.
The record discloses that a copy of the motion and affidavit for change of venue was delivered to the State's Attorney in open court at the time the motion and affidavit was presented to the judge.
The courts in construing the Venue Act have repeatedly held that the Act should receive a liberal 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. Chambers, 9 Ill.2d 83, 136 N.E.2d 812; People v. McWilliams, 350 Ill. 628, 183 N.E. 582.
Since it appears from a statement in the affidavit filed by defendant that the knowledge of the prejudice of the judge did not come to the defendant until the date on which the motion and affidavit for change of venue was filed and copies served on the State's Attorney, we believe that the State's Attorney had reasonable notice of the application and ...