*1 No. 7 Instruction is criticized. That submitted instruction petit larceny in jury case the should not find guilty defendant We burglary. think the instruction jury correct but since the found guilty burglary larceny defendant and of committed in connection therewith said No. 7 Instruction need not be further considered. Appellant complains requested his the refusal of Instruction reading E, as follows: jury, “The court instructs of an in- declarations dividual, immediately moment, made thereafter the oc-- particular act, currence when the circumstances are such that event, we assume that mind is his controlled because such supposed involuntarily statements are expressions to forced out event, him particular and thus an element of truth- they might applies have. This fulness not otherwise doctrine when it was statements made at the time forced out as the utterance will, his will or without truth, forced out his and at a closely period of time so connected with the transaction that there subsequent opportunity no reflection or determination say. might might wise for him as to what it not be mentioning the specifically plain While not defendant it designed apply to his statements made to officers instruction evidently theory proceeds when he was arrested. gestae, res part as shown were motion such statements gestae they res part plain is too That for new trial. argumentative and, instruction require discussion. Moreover a comment defendant’s tes- given, have amounted to would refused. timony. It was assignments error which we find without
There are some other unnecessary appears Defendant discuss. to have and deem merit substantial the verdict trial and we think a fair had judgment in the record. The error find no reversible We evidence. CC., concur. Bohling, Westhues and is affirmed. Cooley, foregoing adopted opinion PER CURIAM: The All judges concur. of the court. Lloyd (2d)W. 572. Smith, Appellant. (Floyd) The State v. Two. November
Division *2 Henry J. appellant. Garuthers for
Boy McKiltrick, Attorney General, HornBostel, As- and James L. Attorney General, for respondent. sistant C. On
WESTHUES, day August, 1935, the 2nd of the prosecuting attorney County, Missouri, Scott filed an the cir- information Upon charging appellant degree. cuit court with murder the first charge appellant day September, 5th tried on County, imprisonment. in Scott convicted and sentenced life He appealed. day August, 1935, 7th
On the filed an alleged ground on County, prej- venue from Scott August day of the inhabitants of the On the 5th udiee prosecuting attorney upon notice was served that the presented August, day would be the court the 12th up day The on that overruled. was taken the court Appellant ruling duly preserved has court for our review. Attorney applica- in his brief conceded that if the General has support are in proper, ap- thereof form the tion and granted. attempt made, far plication No should have discloses, by attorney, as record prosecuting order law. The and affidavits did not with the ground applica- the trial court does out what suggested Attorney tion was overruled. The learned General has not any In his brief defect. he states: exceptions or in the
“There was no reason bill of stated why record as the court same. record is devoid overruled at- any showing that due notice was not torney. Ann., (Mo. statute, Stat. Section Revised Statutes 3194), County, p. applicable to-Scott reads:
“Provided, in all in this which now have counties state seventy-five less than thousand population hereafter have supported by inhabitants residing in of five or credible disinterested pending, cause county where said *3 different judge vacation, change venue, court or grant then the in shall rea- course, further, proof: as of without additional Provided that given application shall in all be previous sonable notice of such prosecuting attorney:” to the requires to set application affidavits statute also the and the sought. That change is grounds, upon which such facts,
forth the procedure and the by proper has been followed this court as statute matter change granted as a complied with a of venue must be when with affidavits We have examined the and course. position in as the for We find ourselves the same care defects. is, discover Attorney General. That we have been unable to learned eight affidavits any irregularities. supporting and as to the law. prepared with with seem to care facts supporting affidavits, in the application, In well as the the in de grounds upon which based were set forth and certainty. eight separate affidavits tail with We learn from the and neighborhood Chaffee, two two of affiants in filed that the lived the and one at Cana. Sikeston, Ancell, two near Illmo one at Oran attorney. We deem days’ to*the Seven notice was in construing this court the case that In statute this sufficient. 496, 500, 285 W. c. Bradford, 698, 314 l. l. v. Mo. c. S. State said: change supported by-the for is affidavits petition
“If the venue upon which the citizens, proof be offered of two disinterested change But, grant the venue. will determine whether court change by the five dis- affidavits of petition change of neighborhoods, then the in different citizens interested proof. That does not mecm granted additional without venue shall affidavits, to the two addition the' shall be in that filed five affidavits because language the same with both. is used reference to petition citizens, whether the two ‘supported’ the affidavits of ‘supported’ citizens, affidavits affidavits of five and those with presented. filed when take it is affidavits five place dispense affidavits, proof. the two with and also additional neighbor- These five affidavits from in must different come county. satisfy joint hoods of the would not Therefore a affidavit statute; separate there must which show the be five affidavits situation five different "When those coming county five quarters affidavits from five different prejudice that defendant, exists then under the statute prejudice without sufficient to authorize the proof.” ours.) (Italics further expressly disapproved
It will be noted this court that case ruling opinion by Commissioner, af the learned five required fidavits two affidavits mentioned in in addition to the ruling consistently forepart fol the section. This only is, supporting lowed this court. That affidavits are five necessary. McCann, (2d) 95, In W. Mo. this State v. 47 S. constitutional, complied to be manda statute held and when with tory cases, court, the trial were there court. Other like reviewed and effect is case of State v. considered. To the same Wilcox, (2d) 85, supporting S. W. five where specific supporting were filed. The this case were good [See, and certain than Wilcox ease. also those held Kelly, (2d) 864, State ex rel. v. 48 W. 330 Mo. These cases 143.] were cited both and the State. of venue We have concluded that *4 facts will be granted, therefore, should have been statement of the unnecessary. Only preserved in one other motion for trial. new need not be considered because concerned separation jury. Cooley judgment is reversed and the cause remanded trial. Bohling, CC., concur. adopt The foregoingopinion by Westhues,
PER CURIAM judges ed as the of the court. All the concur.