The offense is murder; the punishment, confinement in the penitentiary for twenty years.
An application for a change of venue on the alleged existence of prejudice was in due time filed and presented to the trial court. The means of knowledge of the compurgators was controverted, and appellant, as well as the State, introduced evidence. It appears that Collin County has a population of approximately 46,000. The town of Anna, in which the homicide occurred, is situated in the northern part of the county, being about three and one-half miles from the county line. Shortly after the homicide an indignation meeting was held in Anna, but no trouble resulted. The discussion of the case appears to have been confined largely to the immediate locality of the homicide. Appellant's witnesses expressed the opinion that he could not receive a fair and impartial trial in Collin County. On the contrary, the testimony of witnesses for the State was to the effect that the case had not been generally discussed in the county at large. These witnesses were of the opinion that appellant could receive a fair and impartial trial. The newspaper articles concerning the homicide went no further than to describe the transaction. They were not denunciatory of the appellant.
The testimony on the question of prejudice having presented. conflicting theories, the trial court had the discretion of adopting either theory. From the case of McNeely v. State,104 Tex. Crim. 267, 283 S.W. 522, the following quotation is taken:
"Touching the duty of the trial court and of this court upon an application for change of venue, the law, as deduced from the statutes and the decisions, is, as we understand, that where the application is upon the ground of prejudice, and is controverted, the burden is upon the accused to prove the existence of such prejudice against him or against his case that it is not probable that he can have a fair and impartial trial.
"The duty is upon the trial court to weigh the evidence, and if therefrom there arise conflicting theories, one tending to show prejudice of the nature mentioned and the other the contrary, the discretion as to the court is to adopt either. In the absence of abuse of this discretion, the judgment is not to be disturbed upon the appeal. If, however, the evidence is such that it leads to the conclusion that bias, prejudice or prejudgment *Page 235 of appellant or his case is such as to render it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application."
After reviewing the testimony, we are constrained to hold that the trial judge did not abuse the discretion which the law vested in him, and that this court is without legal authority to enter a judgment declaring that in refusing to change the venue there was an abuse of discretion.
It is shown in bill of exception No. 2 that appellant sought to prove by one of his witnesses that he (appellant) stated to the witness after the homicide that he had been stabbed "or struck with something on his left shoulder," and that he wanted the witness to see if he could find a weapon near the body of deceased. It appears from the bill that the statement was made by appellant after he had left the scene of the homicide and gone to a filling station. The bill fails to show how long after the homicide the declaration was made. It fails to embrace any recitals sufficient to enable this court to determine whether the declaration was admissible under the rule of res gestae. The bill failing to show such proximity of time and place and such circumstances as would bring the excluded evidence within the rule of res gestae, we must indulge the presumption that the ruling of the trial court in excluding said testimony was correct. Butler v. State, 3 S.W.2d 101; Moore v. State, 228 S.W. 218; Allen v. State, 224 S.W. 891.
The State proved by one of its witnesses that a 32-20 pistol would produce powder burns when fired under certain conditions. Appellant objected to said testimony on the ground it was not shown that the witness fired the shot under conditions similar to those attending the transaction resulting in the homicide. There is nothing in the bill to show that there were no powder burns on the clothing or body of deceased. If deceased was in fact powder burned, the testimony of the witness could not have affected appellant injuriously. A bill of exception to evidence admitted over the objection of the accused must "set out enough of the surrounding facts and circumstances to disclose that the ruling admitting it was erroneous and prejudicial to the appellant." 4 Tex. Jur., 302.
The trial judge instructed the jury that the arrest of deceased by appellant was illegal. Appellant excepted to said charge and to the failure of the court to charge on the perfect right of self-defense. We are of opinion that under the evidence hereinafter set forth the exceptions were not well taken.
Deceased, A. C. Brown, operated a small filling station on *Page 236 the outskirts of the little village of Anna. After closing, he used the station as his private residence. There was a driveway on the premises of deceased which faced the road. Between it and the road were two brick posts and two gasoline pumps, which obstructed the view from the highway.
About 2 a. m. Dorothy Dobbins came to the station in an automobile and parked in the driveway. Deceased came out in his underclothes and got in the car with her. While in the car they had an act of sexual intercourse. The car was closed and solid half way to the top. The night was dark and the lights were out. No cars passed along the highway during the act of intercourse. According to the testimony of the State, after the completion of the act they got out of the car and deceased started to the doorway of the station. At this juncture appellant, who was marshal and night watchman, came up into the driveway, and, flashing a light on deceased and his companion, placed them under arrest. He had no warrant. Appellant testified that as he approached he saw the car shaking and heard grunting. When he reached the car he flashed his light inside and discovered deceased and Dorothy Dobbins engaged in an act of sexual intercourse. After placing them under arrest he had them walk up the side of the highway. According to the testimony of Dorothy Dobbins, deceased begged appellant without avail to let him put on his clothes. She testified further that while walking along the highway with his back to appellant deceased raised his left arm and that appellant shot him in the back.
Appellant testified that deceased made an assault upon him and struck him on the left shoulder with some kind of an instrument; that in the struggle he held deceased with his left hand and drew his pistol; that he fired the fatal shot while holding his pistol near deceased's body; that he believed his life was in danger.
Art. 212, C. C. P., reads as follows:
"A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an 'offense against the public peace.' "
It is appellant's position that deceased and Dorothy Dobbins. were committing an "offense against the public peace" in that they were indecently exposing their persons in a public place. Hence it is contended their arrest without a warrant was authorized under the terms of the above quoted statute. Art. 474, P. C., among other things, provides that one who goes *Page 237 into or near any public place, or into or near any private house, and exposes his person in a manner calculated to disturb the inhabitants of such place or house shall be fined not to exceed one hundred dollars. A public place is defined in Art. 475, P. C., as being any public road, street or alley of a town or city, or any store or work shop, or any place at which people are assembled or to which people commonly resort for purposes of business, amusement or other lawful purpose.
The nearest residence to deceased's filling station was seventy-five yards away. According to appellant's version, the act of intercourse was on the premises of deceased, and he could not see the parties until he had flashed his light in the car.
Disclaiming any intention of holding that conduct of the character in question would not, under some circumstances, constitute "an offense against the public peace" authorizing an arrest without warrant, we think the testimony in the present record conclusively shows that such an offense was not being committed. Hence the arrest without a warrant was illegal and the court's instruction was proper. Satterwhite v. State,17 S.W.2d 823.
A careful examination of the record leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.