and evidence - Removal as to part of defendants.
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 defendant 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 district attorney and the truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county. The district 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. R.L.1910, § 5811.
Notes of Decisions
Cited in
35
cases (
3 in the last 5 years), 1954–2025 · leading case:
Walker v. State, 723 P.2d 273 (Okla. Crim. App. 1986).
Walker v. State, 723 P.2d 273 (Okla. Crim. App. 1986).
· cites it 2× “Title 22 O.S.1981, § 561 states: 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…”
Irvin v. State, 617 P.2d 588 (Okla. Crim. App. 1980).
· cites it 2× “First, the appellant failed to comply with the statutory procedure for change of venue provided by 22 O.S.1971, § 561. 1 Second, the alleged error was not specifically incorporated in his motion for new trial or in the petition in error.”
Hain v. State, 919 P.2d 1130 (Okla. Crim. App. 1996).
· cites it 2× “Title 22 O.S.1981, § 561, provides that a request for a change of venue must be accompanied by affidavits of at least three (3) credible persons who reside in said county.”
Bench v. State, 2018 OK CR 31, 431 P.3d 929.
“¶21 Appellant timely filed an application for change of venue prior to trial. He cited to the titles of approximately 125 news articles appearing in either print, television or online.”
DeRosa v. State, 2004 OK CR 19, 89 P.3d 1124.
“It also included three affidavits from residents of LeFlore County, in compliance with 22 O.S.1991, § 561, stating that the affiants did not believe DeRosa could get a fair trial in LeFlore County, due to the intense publicity surrounding the case and subsequent prejudice in the…”
Childress v. State, 2000 OK CR 10, 1 P.3d 1006.
· cites it 2× “In fact, while there were numerous newspaper articles published between the date of the offense and the day of trial, we do not find Appellant has established the influence of the news media in the community at large or in the courtroom so pervaded the proceedings that Appellant…”
Braun v. State, 909 P.2d 783 (Okla. Crim. App. 1995).
· cites it 2× “Although counsel filed a memorandum brief in support of a motion for change of venue, the record does not reflect an actual motion for change of venue was filed; nor does it indicate affidavits by county residents were filed, as required by 22 O.S.1991, § 561. The trial court…”
Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228.
· cites it 2× “See also 22 O.S.1991, § 561 ("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…”
Shapard v. State, 437 P.2d 565 (Okla. Crim. App. 1967).
· cites it 2× “Moreover, we observe that had the trial judge determined, either on the motion for a second change of venue, or voir dire examination of the jury, that he could not secure a fair and impartial jury from the residents of Canadian County, he would not have been prevented from…”
Collier v. Reese, 2009 OK 86, 223 P.3d 966.
“2001 § 140 provides: In all cases in which it is made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, the court may, on application of either party, change the place of trial to some county where such objections do…”
Dutton v. State, 674 P.2d 1134 (Okla. Crim. App. 1984).
“We first point out that appellant failed to follow the procedure prescribed by 22 O.S.1971, § 561 in presenting his change of venue motion to the trial court.”
Brown v. State, 871 P.2d 56 (Okla. Crim. App. 1994).
“As he has alleged insufficiency of the evidence in his first proposition, the evidence will be discussed in more detail below. I. ISSUES RELATING TO JURY SELECTION/PRE-TRIAL A.”
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