On January 13, 1925, two indictments were pending in Division No. 11 of the Circuit Court of *Page 3 the City of St. Louis against Donald W. Ross, petitioner herein. He was at liberty on bail previously furnished and on this date applied for a change of venue in the cases there pending. After these applications were filed and before they were passed upon by the court, the circuit judge before whom they were pending declared that said bail bonds were insufficient and ordered that the sheriff take charge of petitioner until sufficient surety was furnished. Petitioner here claims that the circuit judge had no jurisdiction to make this order and that the sheriff unlawfully holds him.
The gist of petitioner's claim is that the mere filing of an application for a change of venue in the circuit court, in proper time and form, deprives the court of all jurisdiction in the case except to make an order granting the application. The adoption of this view would reverse a sound holding of this court to which it has consistently adhered since its organization. The holding is that it is not the application for a change of venue, but the order granting the change, which operates to deprive the original court of jurisdiction, and a refusal to grant a change of venue on a proper application is a mere matter of error that may be waived. This has always been the rule in both civil and criminal cases. [In re Drainage District v. Richardson, 227 Mo. 252; State ex rel. v. Evans, 184 Mo. 632; State v. Dusenberry, 112 Mo. 277; In the Matter of Whitson's Estate, 89 Mo. 58; State v. Daniels,66 Mo. 192.]
If the filing in a criminal case of a proper application for a change of venue in due time operates in and of itself to deprive the court of all further jurisdiction, except to grant the change, and such application be overruled, then defendant may without further ado bide his time and if the ensuing trial results in his conviction and sentence to imprisonment he can secure his release and complete discharge on habeas corpus without appeal or writ of error.
If mere conformity to statutory provisions is determinative of jurisdiction in applications for change of *Page 4 venue, and a trial judge, affected by undue sensitiveness on account of the charge of bias or prejudice, as is not infrequently the case, grants a change of venue on an application that does not strictly comply with the statute and which on that account should be denied, then the court or division thereof to which the cause is transferred acquires no jurisdiction and every step taken by it is coram non judice. Again the defendant would effect a complete discharge on habeas corpus.
Furtherfore, if petitioner's contention becomes the law of this State, then the passing upon an application for a change of venue in a criminal case involves in every instance a question of jurisdiction. If the original court improperly overrules the application its further proceedings are absolutely void; if it erroneously grants a change and the court to which the cause is transferred proceeds with its disposition every step it takes iscoram non judice. The court to which the cause is transferred may not agree with the original court as to the regularity of the proceeding had for the change of venue, conclude that no jurisdiction was conferred thereby and remand it, and the cause be thus shuttled from one court to another indefinitely. It is manifest that the proposed ruling would furnish ready-made and to-hand a new and most acceptable device for use in the great game of delaying, impeding, and thwarting the enforcement of the criminal law.
It cannot be denied that there must be lodged somewhere the power to determine whether upon an application for a change of venue in a criminal cause all the provisions prescribed by the statute conferring the right have been complied with. It is equally indisputable that the statute contemplates that such power shall be exercised in the first instance by the trial court in which the cause is pending. Can it be that the court has only the power to decide one way? Such is the logic of petitioner's claim. But certainly the power to determine whether an application for a change of venue measures up to the requirements of the statute necessarily includes the power *Page 5 to hold that it does not, as well as the power to hold that it does. Consequently, a ruling that an application is insufficient by a court having such power, even though erroneous, is binding and conclusive on the parties and is the law of the case, unless and until reversed on appeal or error by the court having the requisite appellate jurisdiction. Even if petitioner only contends that during the pendency of an application for a changeof venue the court has no other jurisdiction except to pass upon it, his position is unsound, because there would be an interval more or less prolonged in which no court has jurisdiction to make general orders in the cause, regardless of the emergencies that may arise. Such a hiatus in jurisdiction would be another handicap to be overcome in the administration of the criminal code. If, for example, the defendant is at liberty on bail and the security has suddenly become worthless and the court is about to act with respect thereto, its arm may be rendered powerless by the mere filing of an application for a change of venue. A construction that would produce such a result should not be put upon the change of venue statute unless imperatively required by its language. No such language has been pointed out.
Some stress seems to be put on Section 2633, Revised Statutes 1919. That section is wholly without influence in the decision of the question involved. It merely provides that when the judge of a division of the circuit court of the city of St. Louis before whom a criminal case is pending is disqualified under the provisions of the change-of-venue statute no change of venue shall be awarded, but the case shall be transferred to another division for trial.
For the reasons stated petitioner is remanded. All concur except Graves, C.J., and Woodson, J., who dissent; Graves,C.J., in separate opinion in which Woodson, J., joins.