Purvis v. State

Cooper, J., delivered the opinion of the court. There was no error in quashing the venire first drawn, and in directing the clerk to issue a special venire facias, as provided by § 2386, code 1892. It was shown to the court that the board of supervisors had, through ignorance or obstinacy, disregarded the mandate of § 2358, code 1892, in preparing the jury-list from which the jury-box was to be made. There was, in contemplation of law, no jury-box in Marion county, and it would have been useless for the court to have gone through the form of .drawing a second venire from the same box, the illegality of which had caused the quashal of the first. Section 1415 of the code declares that, “in capital cases, — 709 — the application for a change of venue must he made before a special venire shall be drawn, or it will be too late, except when the ground on which such application is based occurred after the drawing of such venire.” After the first venire drawn in this cause had been quashed by the court, and before the writ for the second had been issued, the appellant moved the court for a change of venue, the motion being an oral one, and the bill of exception states that to “said verbal application the court replied it was too late to make such application.” "While we think the change of venue was properly refused, we rest our conclusion upon the fact that the application was not made “in writing,” nor was it “supported by the affidavits of two or more credible persons,” as required by § 1411, code 1892, and not upon the ground that the application came too late. The purpose of § 1415, in requiring the application to be made before the venire is drawn, is to save costs and the unnecessary consumption of the time of the court. The defendant is not permitted to withhold his application until after the venire is drawn and the trial' ready to proceed, and then spring it for the first time. But, upon the quashal of the first venire, the case stood as though none had been drawn; of necessity, the status quo ante the drawing of that venire was restored, and the right and privileges of the defendant, as well as of the state, were determinable by the conditions then existing. But the defendant, desiring the change of venue, was informed by the statute that his application must be in writing, stating the grounds upon which it was asked, supported by the affidavits of two or more credible persons that the facts therein stated were true. The application did not conform to the statute, and it was properly refused for that reason. The application by the defendant for leave to withdraw his plea of not guilty and to plead in abatement to the indictment was properly overruled. Applications of this char — 710 — acter are addressed largely to tbe discretion of the presiding judge, and where, as here, the record does not disclose what matter was intended to be pleaded, it cannot be said that the leave asked should have been granted, or that the defendant was in any way prejudiced by the court’s action. The practice of making general and indefinite applications to the court, withholding all information of the merits of the application, is. not to be encouraged, and when, as here, it' appears that to the action of the court upon such applica-. tion no exception was then taken, but was brought to the attention of the court by exceptions only by tbe motion for a new trial, the exception will not be noticed here. Wilson v. Owens, 1 How., 126. The exceptions taken to the action of the court in granting instructions asked by the state, and in refusing some instructions asked by the defendant and modifying others, are without merit. Some of those given for the defendant might well have been refused, for the proof of his guilt was not dependent upon circumstantial evidence, but rested upon the direct and positive testimony of an eye-witness. All those instructions, therefore, which were predicated of the weight to be given to circumstantial evidence might have been refused, and those of the same character which were denied were properly denied. ¥e have examined all the errors assigned by counsel, and are of opinion that nothing appears by reason of -which the judgment should be disturbed. Affirmed.