#### John Baxter, plaintiff in error, v. The People of the State of Illinois, defendant in error.

Err or to Sock ‘Island.

On an indictment for ‘murder, the accused-filed his Affidavit atid'moved for a change of'venue out of the county, for the reason that the minds of the people of the- county were prejudiced against him. 1 he Court ordered a change of venue to a county, not the next nearest to that where the indictment was found, to 'which the accused, at the time, objected. He therinioved for a change out of the Circuit, alleging in'his affidavit that the Judge'was prejudiced against him, so that-he could not have a fair and impartial trial before him, hut the motion' was overruled: Held, that the Court erred in ordering a change of venue to a county when there were nearer counties, ánd that all the subsequent proceedings in the cause, for that reason, were érróneotis.

-By the Common Law rule, it is competent for the' prosecution tor establish the •fact of a conviction, prim a facie, of other persons jointly indicted" with the ' accused, by the'produetion of the record of their1 conviction.

'JbHN Baxter,'the plaintiff in eftoiy—together'with John Lbiig, Aaron Long, Robert Birch, Grandville Yóung, and Williaúi Fox,—was indicted at the October term'of the Rock Island Ci'rdUit Court, 1845, for the mtirder of Gedrge Davenport. On his arraignment he-pleaded “riot guilty,” and on filing the proper affidavit required by statute, moved for a change of venue-out1 of'the'eounty. The'Court ordered a change of venue to the cdunty of Carroll, a-county not the next nearest to Rock -'Island, to which the accused at the time objected. The Court overruled the objection. He then filed his affidavit in'dUe‘form,:and'moved for1 a change of venue out of the Circuit, which'm'otion was refused. At the Carroll Circuit Court, the cause was rémánded to, and tried in Rock Island county, on'motion-of the accused.

John Long, Aaron Long and Grándville Young were tried, convicted and executed. Birch and Fdx were'not'then tried.

At the trial the record of such coriviction'wás introduced by the prosecution, to which the accused,-át'the time, objected, but his objection was overruled, aridHlle record permitted to be read to the jury. The jury returned a verdict of “guilty;” whereupon the accused entered a iriotion for a new trial, and stated several causes why the application should *579be granted. The motion was overruled, and the Court rendered judgment upon the verdict, and passed sentence of death upon the accused.

The cause was taken to this Court by writ.ofierror, twhen the plaintiff in error assigned ten causes of error, which were substantially the same as those assigned in the case of McKinney v. The People, ante 540. As the Court in .their Opinion passed upon two of those causes only, the .remainder will not be recited here,

J. B. Wells, J. H. Ralston, and C. Gilman, for the iplaintiff in error,

in support of the objection to the changeiof venue, cited Rev. Stat. 528, § 5, which requires the change .to be made to the next nearest county to that where the'Cause is pending. Also, Clark v. The People, 1 Scam. 120.

In support of the assignment of error in relation to the introduction in evidence of the conviction of the Longs and Young, they cited Kazer v. The State, 5 Ohio, 172; The People v. Buckland, 13 Wend. 594; Case v. Reeve, 14 Johns. 81; Commonwealth v. Briggs, 7 Pick. 177; Phillips’ Ev. 226, 331.

J. A. McDougall, Attorney General, and O. Peters, for the defendant in error,

to remove the first objection of the plaintiff in error, contended'that it was waived by his motion in the Carroll Circuit Court to remand the cause to the Rock Island Circuit Court.

As to the second objection, the record of the proceedings in the Court below ’does not exhibit the entire testimony, nor does it state the- object for which the record was introduced. It was -competent for either party to introduce the record for some purposes, and, as the Court is not advised of the purpose in this case, they cannot suppose it to have been introduced improperly.

The Opinion of the Court was delivered by

Caton, J.*

The plaintiff in error with three others «was *580indicted for murder at the last October term of the Rock Island Circuit Court. Baxter filed his affidavit in the usual form, and prayed a change of venue out of the county. The Court ordered the venue to be changed to the county of Carroll, which does not join Rock Island, no objection appearing to have existed to any of the adjoining counties. To this order the defendant objected, and took an exception. The defendant having objected at the time to the venue being changed to Carroll, when there were nearer counties to which no objection appears to have existed, the Court erred in making that order. Consequently, all the- subsequent proceedings in the cause were erroneous. It is, therefore, unnecessary to review them at length. The judgment of the Circuit Court must be reversed, and the cause remanded to the county of Rock Island, where it properly belongs, after the reversal of the order changing the venue to Carroll county. That order being reversed, the cause will stand in that Court precisely as if no order had ever been made on that motion, and the defendant may press that motion to another decision, or withdraw it and interpose another, as he may be advised.

As the question may arise on a subsequent trial, it may not be improper for us to express an opinion upon the admissibility of the record of the- conviction of the others with whom the defendant was indicted for the murder. We think that record might have been proper. Under our statute, an accessory may he indicted and punished as principal, and in such a case it would be necessary for the prosecution to make out the guilt of the principal, before the jury could find the defendant guilty of the murder by being accessory to it. In such a case, according to the common law rule, it would be competent for the prosecution to establish that fact prima facie by the production of the record of their-conviction.

Judgment reversed.

*

Wilson, C. J. did not sit in this case.