Having tried the case in the court below, under ordinary circumstances I should hesitate to dissent from my brethren; but believing, as I do, that important legal principles have been violated in this decision, I can not refrain from expressing the reasons for my dissent. The court reversed this ease solely on the ground of the refusal of the court below to charge the venue and the decision is predicated upon the rule or construction of our statutes regulating the change of venue, as laid down in the Randle Case, 34 Texas Criminal Reports, 43. The rule there laid down, as I understand it, is that "prejudice," under our statutes relating to the change of venue, means the same thing as "prejudgment;" that is, "prejudice" is defined to be a formation of an opinion as to the guilt of the person to be tried. The presiding judge who wrote the opinion in this case uses this language: "Evidently the learned judge believed that the statute with reference to prejudice had reference to only prejudice against the accused, separate and distinct from his crime, or personal prejudice against him, with or without any connection with the crime. We can not comprehend how this proposition can be sound. It would make no difference with the defendant whether he was hanged or sent to the penitentiary because *Page 514 his triors had prejudged his guilt, or had prejudged him as a man. It would be the same to him." This is the doctrine of the Randle Case. Before that time such had not been the construction of our statute with reference to the change of venue. That case was rendered before the decision in this case. I have read it carefully, and I can not yield my assent to the doctrine it announces; nor do I believe that the rule stated was necessary to reach the result in that case. I shall first endeavor to show, the fallacy in the construction of our statute on the Change of venue as laid down in the Randle Case; and I will then show that, even if the rule in the Randle Case be considered as sound, it has no application to the facts in this case. Before I proceed, however, I will state the rule on the question of change of venue as laid down by the authorities of this State, and, so far as I have been able to discover, not gainsaid or controverted by any case: When an application is made for a change of venue on the ground that there exists in the county where the case is being tried so great a prejudice as that the accused can not expect a fair and impartial trial, after issue joined on this proposition the burden is upon the accused to make out his case; and, after hearing the evidence, the decision of the question is largely confided to the discretion of the judge to whom the application is made, and the appellate court will not be warranted in revising the ruling of the lower court unless it be made to appear that such ruling was an abuse of the discretion of the judge, and that the rights of the accused have been prejudiced by his action in the premises. See Myers v. State, 8 Texas Crim. App., 321; Cox v. State, Id., 254; Martin v. State, 21 Texas Crim. App., 1; Bohannon v. State, 14 Texas Crim. App., 271; Noland v. State, 3 Texas Crim. App., 598; Winkfield v. State, 41 Tex. 148. For other authorities, see note to article 615, Willson's Code of Criminal Procedure. To the same effect are the authorities of other States. "The granting of a change of venue on account of the prejudice of the citizens of a certain county against the party to an action is generally discretionary with the court, subject to revision only in case of abuse. The allegation that a fair and impartial trial can not be had must be clearly established, or the venue will not be changed." See 3 Am. and Eng. Enc. of Law (old ed.), p. 96, and notes. It is further held "that the court may deny the motion until it be shown, by an examination of a sufficient number of jurors, whether a fair and impartial trial can be obtained or not; and the fact that a fair jury is obtained is an answer to the affidavit. Id., p. 99.
Now, our article for a change of venue, under which the application was made in this case, reads as follows (article 615, Code Criminal Procedure): "A change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine: (1) That there exists in the county where the prosecution is commenced so great a prejudice against him that he can not obtain a fair and impartial trial. (2) That there *Page 515 is a dangerous combination against hint instigated by influential persons, by reason of which he can not expect a fair trial." The question here turns upon a proper definition or construction of the term "prejudice," as contained in this statute. It is conceded, in this connection, that the object of a change of venue is to secure a fair and impartial trial; and the right to a change of venue proceeds on the idea that such a fair and impartial trial can not be had in the county, on the ground that so great a prejudice exists against the accused that he can not expect a fair and impartial trial. A majority of the court maintain that "prejudice," here, means the formation of an opinion. I contend that, as contemplated by the statute, it means personal spite or ill will. It is susceptible of either meaning. The question is, what meaning was it intended to have by our lawmakers? To arrive at this intention, I hold that the statutes bearing on the subject of securing to art appellant a fair and impartial trial must be construed in pari materia. Article 616, following this article, authorizes a change of venue when tin unsuccessful effort has once been made in any county to procure, a jury for the trial of a felony; evidently anticipating that if a jury can not be procured for the trial of a case, because of the formation of opinions, the venue may be changed. And again, as a part of the machinery insuring a defendant a fair and impartial trial, the statute (article 673, Code Criminal Procedure), authorizes a defendant, on certain accounts, to challenge members of the jury. One of the grounds of challenge is that he has a bias or prejudice in favor of or against the accused; and another ground is that, from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as will influence his action in finding a verdict. This is a clear and emphatic distinction between prejudice as a ground of challenge to a juror and the formation of an opinion, and tends towards a proper interpretation of the article on change of venue. Our lawmakers, no doubt, had a keen appreciation that there was a distinction between prejudice against the accused, and the mere formation of art opinion as to the guilt or innocence of the defendant in a particular case. They provided that, whenever the juror answered that he had a prejudice, no further questions should be asked, but this afforded a ground of challenge. But, when they came to treat of the next subdivision, they provided that the mere formation of an opinion did not constitute a ground of challenge, but that this opinion must be fixed, and in a measure ineradicable. They appear, in this legislation, to have taken accurate observation of the difference between these two conditions of the mind. They realized that the man actuated from prejudice, out of sinister purpose, would be prone to deny that he had such prejudice, and thus get on the jury for the purpose of venting such prejudice, whereas the man who had formed an opinion as to guilt, merely, would exercise no personal prejudice against appellant, but would always be ready to avow that he had an opinion in the case. I am not saying now that a ease may not occur of such startling atrocity as not only to create the formation of an opinion *Page 516 in regard to the guilt or innocence of the party accused of crime, but also to engender a personal prejudice or animosity against such person. There may be, and doubtless have been, such cases; that is, the case itself may be so horrible as to engender a personal prejudice against the person accused of perpetrating it. But this is by no means the general rule; the general rule being that the prejudice does not originate out of the case to be tried, but out of some other matter unconnected with the case; and this character of prejudice is what I understand our statute to contemplate. This construction of the statute gives life and vigor to all of our statutes bearing on the subject, and secures to the accused all that he can demand — a fair and impartial trial. If any other construction is placed upon this statute, the venue, in every case which becomes somewhat notorious in the community where it occurred, can be changed, not on the ground of prejudice, but because people have formed opinions in regard to the guilt or innocence or the defendant. As stated before, there is no lurking danger when jurors have merely formed opinions in the case, because they are ready to avow it. The danger is when they have a private pique or prejudice against the appellant, which they are too ready to conceal for the purpose of getting on the jury. And, as shown above, the court is authorized to change the venue when an unsuccessful attempt has been made to procure a jury.
Concede, however, that the rule laid down in the Randle Case, and followed in this case, is a sound one; yet I insist that it utterly fails to have any application to this case. There were twenty-three witnesses examined on the question of changing the venue, instead of sixteen, as stated in the opinion of the court, and the fullest latitude was allowed by the court in the examination of these witnesses. They were permitted to be fully interrogated as to their own opinions as to the guilt of appellant, and as to the expressions by others of their opinions. Of the twenty-three witnesses, eighteen were from the town of Cameron, where the killing occurred; five only lived out of town, — four of these within a radius of seven miles of the town; and one only lived remote from Chameron, Milam County is a large county, having, something over 1000 square miles of territory, and is about forty miles square. Situated within its borders are several considerable towns, and a number of villages. It is thickly populated, the number of voters, as shown by the record, being about 5000; and of this number there are about 2500 qualified jurors. So that at the very threshold we are confronted with the fact that the investigation here made was only partial; the witnesses produced being mostly from Cameron, where the tragedy occurred, and the remote parts of the county not touched by the investigation, except, as some of the witnesses testified, that they came in contact with persons from every section of the county. True, a number of these witnesses, testified that they had heard expressions to the effect that appellant was guilty, and that he ought to be hanged. A number — in fact all who were examined upon the question — stated that, in their opinion, they believed appellant could secure a fair and impartial trial in Milam *Page 517 County. By their testimony it is made evident that not one of the witnesses had any personal pique or prejudice against the appellant, nor did they know of any person who had. On the contrary, it is manifest from their evidence that they each and all felt friendly towards the appellant. They said that he had always stood well in the community, and that his relatives wad friends wore influential, and several of them stated that on that account they believed he could get a fairer trial in Milam County than any other county. True, some of them said that, if prejudice and prejudgment of the case and the formation of an opinion are the same thing, they had formed opinions as to his guilt. I quote from W.B. Streetman — an intelligent witness — on this question, as follows: "I have lived in Cameron forty years. I have heard the case of the State v. D.H. Meyers discussed a good deal. I have not heard it discussed throughout the country. I have heard it discussed principally here in Cameron. Have heard it discussed by Cameron people pretty generally; and occasionally by a man from the country. I have not heard it discussed by any country people, except when I would see them in Cameron. I don't know that the case has been prejudged by the people. I have heard a good many express themselves, but can not say that I think it has been prejudged. I have heard some say that he is guilty, and that he ought to be punished; and I have heard others say they were in sympathy with the defendant and with his family. I don't know that the expressed only with his family. I have heard them say they were sorry it had happened. I think the general belief is that he is guilty. The most of the people whom I have heard discuss the matter have so expressed themselves, about him. The people condemn the act, and I reckon they condemn the man for the act; but 1 don't think there is any prejudice against him, except that they say he is guilty, and that he ought to be punished for it. They say it was a bad act, and that he ought to suffer for it. I am not able to say what the sentiment is outside of town here, and really I have not heard it discussed but very little, of late, here in Cameron, I don't know whether there is a prejudice against him in the minds of the country people or not. I think the opinion of the people, so far as I know, is adverse to the defendant. I don't think it is any more adverse to him than it would be to anybody else under the same circumstances. Outside of the family, I never heard anybody express themselves otherwise than that he is guilty. I think I have heard members of his family say they did not believe he was guilty. I don't consider that there is a prejudice against him, necessarily growing out of this act. I don't consider prejudice that way. I don't think 'prejudice' would mean that one would hate a man so that he could not help but convict him, whether he was right or wrong. If the fact that the general sentiment of the people is that they have formed an opinion means prejudice, then there is a, prejudice, but I do not look at it that way. I draw a distinction between that and prejudice. I do not think there exists against him such a prejudice in the county that he can not get a fair trial here. I think that people *Page 518 could be found that would give him a fair trial. I have thought there was a sympathy for him on account of his reputation and family, and that he could get a fairer trial her than in another county." Other witnesses testify to the same effect, but not as strong as Streetman; and it occurs to me that such testimony illustrates the fallacy of the rule laid down in the Randle Case. I have taken pains not only to carefully read the testimony of the witnesses, as contained in the record, in order to refresh my recollection, but I have made a synopsis thereof; and it occurs to me now, as it did then, that appellant entirely failed to discharge die burden imposed upon him by the law, to wit, to show that there existed against him such a prejudice, according to my understanding of prejudice, or such a prejudice according to the rule laid down in the Randle Case, as, would deprive him of a fair and impartial trial. In the first place, the investigation was partial, and did not cover the entire county; secondly, the witnesses, each and every one, showed that they had no personal prejudice against appellant, and that they knew of none; thirdly, that, if prejudice meant the formation of an opinion in the case, then appellant's investigation did not show that these opinions were of all acute or fixed character, going to the extent of creating in their minds prejudice against appellant and his cause, and, moreover, did not show that the formation of such opinion was general throughout the county, so as to preclude the reasonability that appellant could get a fair and impartial jury; fourthly, that the general sentiment in Milam County was friendly towards the accused, that he had always stood well, and that he had influential relatives, and friends there; and, lastly, the weight of the testimony showed that, notwithstanding the formation of opinions, appellant could get a fail and impartial trial in Milam County. How the court can say, under the facts shown in this record, that there was an abuse of discretion on the part of the trial judge in failing to change the venue, I am at a loss to understand; and yet, in rendering this decision, the court had to say there was a clear abuse of discretion. Moreover, when we look beyond the bill of exceptions with reference to the change of venue, to the result reached in this case, which is authorized, it is evident, and can not be questioned, that a fair and impartial jury was secured. Not only so, but that the jury, under the facts in proof, were exceedingly lenient towards appellant. On the evidence, a verdict of murder in the first degree would be sustained; and yet they gave him only murder in the second degree, with a penalty of twenty-five years.
Recurring to our Reports on a change of venue, a number of cases can be found where the action of the lower court was sustained, in refusing to change the venue, when the proof was far stronger than the proof made in this case. I can not refrain, in this connection, from referring to the case of Harrison v. State (Texas Criminal Appeals), 43 Southwestern Reporter, 1002, which was written by Judge Hurt. In that, case the facts are stronger than here. I quote from that opinion the following: "We have read the testimony bearing upon this question, and are *Page 519 of opinion that there was no error in the action of the court refusing to change the venue. It is true, the sheriff was apprehensive that appellant might be mobbed, called for troops, and the Governor responded, and troops were at court when the trial occurred. This alone is not sufficient cause for a change of venue. If the sheriff had been thoroughly examined, it might have been shown by him, his deputies, or others, that prejudice pervaded the whole county to an extent as to render it probable that some illegal juror might serve in the case; but this was not shown, and we can not hold that, because the sheriff was apprehensive that appellant was in danger, therefore the prejudice was so general as to require a change or venue. A number of witnesses sworn testified to some prejudice, but the evidence falls far short of showing it to be so general as to require the motion to be granted. We attribute but little weight to the opinion of a witness that an impartial trial can or can not be had in the county of the prosecution. These opinions are to be weighed and considered in proportion to the information of the witness bearing upon the subject. No such combination of influential people was shown as to require a change of venue on this ground."
I have said so much because I feel the court has committed a grievous error in standing by the rule announced in the Randle Case, but, if possible, a more grievous error in extending it to the facts of this case. What I have said is for the purpose of vindicating the law as I understand it. If not now, perhaps it may bear fruit at some future time.
[NOTE. — The State's motion for a rehearing was overruled without a written opinion. — Reporter.]