* * Provided, that the

116. Right of Change of Venue-* venue may be changed to some other county of the State, on the application of the accused, in such manner as may be prescribed by law. (Sec. 20, Art. 2, Const.)

117. Change of Venue-Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendent that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of the allegations in such peti. tion be supported by the affidavits of at least three credible persons, who reside in said county. The county attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court. When there are several defendants in any indictment or criminal prosecution, and the cause of the removal thereof exists only as to one or more of them, the other defendants shall be tried and all proceedings had against them in the county, in which the case is pending, in all respects as if no order of removal had been made as to any defendant. (5811 R. L. 1910.) No law authorizing change of venue on account of prejudice of judge. Stanley v. U. S., 1 Okla. 336.

Not error to overrule application for change of venue where affidavits in support of same do not set forth facts which would operate to prevent fair trial. Peters v. U. S., 2 Okla. 116; Starr v. State, 5 Okla. Cr. 440, 115 P. 356.

Granting or refusing change of venue is largely within discretion of trial judge, and will not be disturbed unless discretion is abused. Patswald v. U. S., 5 Okla. 351; Cutler v. Terr., 8 Okla. 101; Pearce v. Terr., 11 Okla. 438; Johnson v. State, 1 Okla. Cr. 322, 97 P. 1059; Black v. State, 3 Okla. Cr. 547, 107 P. 534; Turner v. State, 4 Okla. Cr. 164; Starr v. State, 5 Okla. Cr. 440, 115 P. 356; Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956; Bouie v. State, 9 Okla. Cr. 345, 131 P. 953; Maddox v. State, 10 Okla. Cr. 569, 139 P. 994; Etter v. State, 11 Okla. Cr. 208, 144 P. 560; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719.

County Attorney waives notice by failing to object. Terr., 13 Okla. 690.

Garrison v.

Burden is on applicant to show inability to obtain fair trial. Johnson v. State, 1 Okla. Cr. 322, 97 P. 1059; Tegeler v. State, 9 Okla. Cr. 138. 130 P. 1164; Maddox v. State, 12 Okla. Cr. 462, 158 P. 883.

No change lies from County Court in misdemeanor case. Washington v. State, 2 Okla. Cr. 428, 101 P. 863.

Application comes too late without notice to County Attorney. Caples v. State, 3 Okla. Cr. 73, 104 P. 493.

Application for change of venue, and accompanying affidavits are no part of record proper can only be presented for review by incorporating same into bill of exceptions. Day v. State, 7 Okla. Cr. 277, 123 P. 436.

Any party may be called and examined on application for change. Maddox v. State, 10 Okla. Cr. 569, 139 P. 994.

118. Same; Procedure-The order of removal from the county must be entered upon the minutes and the clerk must thereupon make out, and within ten days transmit to the county to which the action is removed, a certified copy of the order of removal and the record and shall transmit the pleadings, including the undertaking for the appearance of the defendant, and of the witnesses, and the cause must be docketed and stand for trial at the first term of court after the cause has been transferred. The county from which the change was taken shall be liable for the expense and charge of removing, delivering and keeping the prisoner and the per diem allowance and expense of the jury trying the cause, and of the whole panel of jurors in attendance during the trial, stenographer's fees and the per diem of the sheriff, court and jury bailiffs during the time said cause is on trial, and witness fees where the same are paid by the county, and such other expenses as are incident to the trial, which costs and expenses shall be audited, itemized and allowed by the court trying the cause and certified by the clerk of the district court to the clerk of the county from which the cause was removed and shall show the name of each person and the amount due to him,

and on receipt of such certificate, the county clerk shall draw his warrants on the county treasurer of his county for the several amounts, payable to the order of the persons named, and forward the same to the clerk of the district court where the cause was tried, who shall, on demand, deliver the various warrants to the person entitled thereto. All warrants not so delivered within one year from the time they are so received by the clerk of the district court, shall by him be returned to the county clerk where the same were drawn and be by him marked canceled. (5817 R. L. 1910.)

Failure of clerk to affix seal to transcript of record does not prejudice rights of defendant. Haikey v. State, 3 Okla. Cr. 287, 105 P. 313.

119. Disposition of Defendant-If the defendant is in custody, the order must provide for the removal of the defendant, by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed, and he must be removed according to the terms of such order. (5818 R. L. 1910.)

120. Same; Court May Require Bail.-When the court has ordered a removal of the action, it may require the accused, if the offense be then bailable, to enter into an undertaking with good and sufficient sureties to be approved by the court, in such sum as the court may direct, conditioned for his appearance in the court to which the action has been removed, on the first day of the next term thereof, and to abide the order of such court; and in default of such undertaking, a warrant shall be issued to the sheriff or other proper officer commanding him safely to keep the prisoner and at the proper time to convey him to the jail of the county, where he is to be tried, there to be safely kept by the jailer thereof until discharged by due course of law. (5819 R. L. 1910.)

121. Recognizance of Witnesses-When a removal of the action is allowed, the court may recognize the witnesses on the part of the State to appear before the court to which the defendant is to be tried. (5820 R. L. 1910.)

122. Trial; Records and Papers-The court to which the action is removed must proceed to trial and judgment therein the same in all respects as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must at any time upon the application of the county attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. (5821 R. L. 1910.)

For another provision for change of judge, see secs. 1830, 1831, 1832, R. L. 1010.

123. Stolen Property Disposed Of-When property alleged to have been stolen or embezzled comes into the custody of a peace officer he must hold it subject to the order of the magistrate authorized by the next section to direct the disposal thereof. (6127 R L. 1910.)

124. Magistrate to Order Delivery-On satisfactory proof of the title of the owner of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the owner on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property. (6128 R. L. 1910.)

125. Magistrate Must Deliver Property on Proof-If the property stolen or embezzled come into the custody of a magistrate, it must be delivered to the owner on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation to be certified by the magistrate. (6129 R. L. 1910.)

126. Trial Court May Deliver Stolen Property-If property stolen or embezzled have not been delivered to the owner, the court before which a trial is had for stealing or embezzling it may, on proof of his title, order it to be restored to the owner. (6130 R. L. 1910.)

127. Where Property Unclaimed-If property stolen or embezzled be not claimed by the owner before the expiration of six months from the conviction of a person stealing or embezzling it, the magistrate or other officer having it in his custody must on payment of the necessary expenses incurred in its preservation deliver it to the county commissioners to be paid into the county treasury. (6131 R. L. 1910.)

128.

ARTICLE VIII.

COMPROMISING OFFENSES.

Misdemeanor May Not Be Compro- 130. Stay on Compromise a Bar.
mised, When.
131. Other Compromises Not Allowed.

129. Proceedings Stayed on Compromise.

128. Misdemeanor May Not Be Compromised, When-When a defendant is held to answer on a charge of misdemeanor, for which the person by the act constituting the offense has a remedy by a civil action, the offense may be compromised as provided in the next section, except when it was committed: First. By or upon an officer of justice while in the execution of the duties of his office.

Second. Riotously; or,

Third. With an intent to commit a felony. (6113 R. L. 1910.)

129. Proceedings Stayed on Compromise-If the party injured appear before the court to which the deposition and statement are required to be returned at any time before trial, on an indictment or information for the offense, and acknowledge in writing that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom. But in that case the reasons for the order must be set forth therein and entered upon the minutes. (6114 R. L. 1910.)

130. Stay on Compromise a Bar-The order authorized by the last section is a bar to another prosecution for the same offense. (6115 R. L. 1910.)

131. Other Compromises Not Allowed-No public offense can be compromised, nor can any proceedings for the prosecution or punishment thereof, upon a compromise, be stayed, except as provided in Secs. 128 and 129. (6116 R. L. 1910)

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