The action of the trial court in refusing to charge the venue upon the appellant's motion and of this court in sustaining the action of the trial court in the particular mentioned is vigorously assailed. Special emphasis is laid upon the fact that in the opinion of this court the insufficiency of the application for a change of venue was adverted to. From an examination of the appellant's bill of Exception No. 2, relating to the matter, it is made manifest that the trial court, in refusing the change of venue, did not base his action upon the insufficiency of the application though it was not supported by the affidavits of two credible persons as required by Art. 562, C. C. P., 1925. The defect in the pleading was ignored by the court and evidence was heard. The appellant introduced without objection from the State a number of newspaper publications. The State also introduced witnesses whose testimony was heard by the court. After hearing the evidence the court, according to the record here, before overruling the *Page 412 motion, stated to the appellant's counsel that if they believed that if any person with whom they had talked in their endeavor to get witnesses touching the change of venue had not expressed their true opinion or expressed an opinion favorable to the appellant on the issue, or if they knew of any one who would be likely to testify in the appellant's favor and give the names of such persons to the court, process would be issued for them and they would be brought into court so that the appellant might be given the benefit of their testimony. Counsel for the appellant then stated to the court that they knew of no such person or persons and that they could not find a person who believed that the appellant could not obtain a fair trial in the county and that the fact that they could not find such a person convinced the attorneys that prejudice existed. The appellant introduced several witnesses who testified to having read some of the articles published in the newspapers and who declined to give the opinion that there was prejudice against the appellant, but said that by reason of the notoriety that the matter had been given it would require an unusual length of time to get a jury. It appeared from these witnesses that there were about 20,000 qualified voters whose names were in the jury wheel, but in the opinion of the witnesses a jury could be obtained that would give the accused a fair and impartial trial; that in the opinion of the witnesses there were a number of people in the county who were qualified and who were unacquainted by hearsay or otherwise with any of the facts bearing upon the case. The State introduced several witnesses who testified to circumstances showing their acquaintance with the public sentiment and who expressed the opinion that there existed no prejudice or other conditions that would prevent the selection of a jury who would give the accused a fair trial. It was shown that the city of San Antonio had a mixed population consisting of people of various nationalities.
"It is a general and wholesome rule, we think, which declares that the inference of prejudice requiring a change of venue is not to be drawn from the fact alone that newspapers published in the vicinity have contained news articles descriptive of the offense or editorials denunciatory of the accused." (Cox v. State, 90 Tex.Crim. Rep..)
There are instances in which the acts of one accused of crime have been the subject of public controversy in which newspapers have taken part to a degree that rendered the publications important factors in creating such prejudgment or prejudice as would render *Page 413 it improbable that pursuing the methods provided by law an impartial trial could be had. Examples are Fleming v. State,62 Tex. Crim. 653; Gallagher v. State, 40 Tex. Crim. 296; Cox v. State, 90 Tex.Crim. Rep.; in which cases the publications went far beyond the point of giving the news of the day such as is exemplified by the publications relied upon by the appellant in the present record.
From the case of McNeely v. State, 104 Tex.Crim. Rep., 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 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. See Carlisle v. State, 255 S.W. Rep. 991, and authorities therein collated."
As the matter of the application for a change of venue comes before this court, the evidence heard, aside from any technical rule touching the sufficiency of the pleading applying for a change of venue, makes clear the fact that in overruling the motion the learned trial judge did not abuse the discretion which the law vested in him, and this court is without legal authority to enter a judgment declaring that in refusing to change the venue there was an abuse of discretion.
After the motion for a change of venue was overruled and after the selection and impaneling of the jury and the pleading was presented to the jury, the appellant made in writing a motion designated a "motion to open the change of venue," setting up in substance that there was a dangerous combination against him instigated by influential persons by reason of which he could not expect *Page 414 a fair trial. The motion was not verified by compurgators, and a hearing on it was declined by the court with the statement to counsel that the motion was out of order but that the defendant would be given an opportunity to present the matter on the motion for new trial, at which time counsel would have full opportunity to present any testimony he might have as to prejudice against the defendant, as well as any other defensive matter. In connection with the motion for new trial which was filed on the 19th day of September and heard on the 24th of that month, a formal motion for a change of venue, duly supported by affidavits, was presented and evidence thereunder heard by the court. It was based on both of the statutory grounds, namely: that of prejudice and of dangerous combination. The evidence adduced seems to have been the testimony of two women, the substance of their testimony being that they had no knowledge of any dangerous combination, and in support of their belief that he could not get a fair trial they were unable to detail any facts. A fair inference from their testimony as to what they were trying to portray is that they thought there was too much speed in the trial and that the verdict was excessive. The witnesses were both opposed to the infliction of the death penalty for crime. The matter, as a motion for a change of venue, would have no legal status. The evidence, however, was entitled to consideration in connection with the motion for new trial as bearing upon the soundness of the trial court's decision in overruling the motion for a change of venue in the first instance. It seems obvious that the evidence adds nothing and certainly nothing that would deprive the trial court of its discretion to overrule the motion for a change of venue and the motion for new trial.
Bills Nos. 3 and 4 deal with the complaint of the appellant on the refusal of the court to postpone the trial in order to give counsel more time for preparation and because of the appellant's physical condition due to wounds that he had received. This matter is set forth in a comprehensive manner in the original opinion. That part of the motion which dealt with the physical condition of the appellant as bearing upon his ability to conduct his trial was met by the testimony of two witnesses introduced by the State, one of them a doctor and the other a layman. The doctor's testimony was to the effect that the wounds upon the appellant were flesh wounds in the calf of his leg; that he had examined the appellant twice and treated him; that there were no broken bones; that he regarded the appellant both physically and mentally able to be present and conduct *Page 415 his trial. There was an extended cross-examination of the doctor which but confirmed his statements upon direct examination. Another witness (a newspaper reporter) gave testimony that he had talked to the appellant and had taken an interview from him which was published in the paper; that he appeared rational and coherent in his remarks. No other testimony was tendered upon the subject. The testimony of the witnesses mentioned was uncontroverted. In the original opinion there are quotations from the qualification of the bill which portray the condition of the record as it now appears before this court.
The indictment was presented on the 12th of September, and the trial began on the 15th, which was two days after the return of the indictment. Therefore, the time expiring between the service of copy of the indictment and the beginning of the trial complied with the statute. Art. 493, C. C. P., 1925, declares that the arraignment shall not take place until after the expiration of two days after the indictment is filed. Counsel was appointed in accord with Art. 494, C. C. P., 1925. That the appellant was put to trial with unusual haste is not open to question. It has been often declared that the purposes of the statute (Art. 493, supra) is to afford the accused opportunity after arrest to prepare for trial, to determine whether written pleadings are necessary in the case, and to decide upon his course as to the trial of the case. Reed v. State, 31 Tex.Crim. Rep.; and numerous other cases collated in Branch's Ann. Tex. P. C., Sec. 343. It is manifest that in enacting the statute it is the view of the legislative department of the government that for the purposes mentioned, in the absence of exceptional facts, two days would suffice. Whether additional time should be accorded in a given case would be discretionary with the trial judge subject to review upon a showing that the discretion was abused. In the present instance the accused was accorded the statutory time to prepare for trial. Evidence was heard in the trial court touching the existence of the facts alleged as a basis for further delay. Under the circumstances, unless the evidence heard was inadequate to warrant the ruling of the trial court on the motion or there were other tangible facts upon which this court would be justified in reversing the ruling of the trial court, there would exist in this court no authority to set aside the verdict of conviction because of the refusal of the trial court to delay the trial. This court has no right to arbitrarily overturn the ruling of the trial court. The scope of authority of the Court of Criminal Appeals, like that of all other *Page 416 governmental agencies, is limited and extends no further than to reverse the judgment of the trial court for errors of law which are deemed material and prejudicial to the accused or for the want of evidence sufficient to overcome the presumption of innocence. In passing upon the motion the court stated to counsel that if at any time during the trial any legal questions should arise of which counsel were not fully advised, the court, would, upon that being made known, accord ample time for counsel to inform themselves. They then stated that they were willing to proceed. This matter is discussed in more detail in the original opinion. Upon the record before it, this court would not be authorized to interfere with the finding of the jury because the trial court regarded the time allowed for preparation for trial allowed by statute sufficient. As supporting their claim that in declining to postpone the trial there was reversible error committed, counsel points to the case of Jones v. State, 204 S.W. 437. An examination of the record and opinion in that case discloses the fact that in his motion for new trial Jones gave very good reasons and set up very cogent facts supported by the affidavits of witnesses which were deemed by this court sufficient to show the probability of a different result upon another trial. Moreover, Jones interposed a defense both by plea and by evidence, and testified upon the trial denying the commission of the offense with which he was charged. In the present case, neither on the original hearing nor on the motion for new trial was there given any defensive evidence which would justify the homicide. The identity of the appellant as the slayer was established, as was the fact that by his act the deceased was killed. The sole defensive theory suggested is that the deceased flashed a searchlight upon the appellant and inquired what he was up to. It affirmatively appears that the act of the deceased was not accompanied by any threat or the exhibition of weapons, either by the deceased or by his companions.
The refusal of the court to continue the case is deemed to have been correctly dealt with in the original opinion in this case. It may be added, however, that on the hearing of the motion for new trial some days subsequent to the trial, the averments of the motion to continue were not strengthened by the testimony of the appellant or any other witnesses. This is suggestive of the idea that if a delay had been accorded, it would have availed nothing.
Nothing is found in the statute or in the interpretation thereof which would require the trial court, under the circumstances stated *Page 417 in the bill, to cause process to be issued for the absent veniremen. It is made plain from the bill that the veniremen who were absent were shown by proper return to be unavailable. The complaint is not that the veniremen who had beensummoned were absent. If such had been the case, a different rule would have obtained. See Hudson v. State, 28 Tex.Crim. App. 323; Roquemore v. State, 11 S.W.2d 316.
Touching the claim that the court erred in permitting the officers, because of their alleged prejudice, to summon the veniremen, it appears from the bill that evidence was heard and its uncontroverted effect was to negative the soundness of the claim.
The new evidence upon which a new trial was sought was the testimony of C. K. Morriss. On the hearing of the motion, Morriss was called as a witness and testified that immediately after the shooting he picked up near the body of the deceased a flashlight which was near the pistol and hat. The witness was subpoenaed, was present during the trial and conversed with counsel for the appellant, who made inquiry of the witness if he saw the shooting. A negative reply was received and no further inquiry was made. As stated in the original opinion, the evidence was not newly discovered within the meaning of the law. Fisher v. State, 30 Tex.Crim. App. 502; Branch's Ann. Tex. P. C., Sec. 204. The fact that after the deceased was shot and while he lay upon the ground a flashlight was observed in or near his hand, was in evidence through other testimony and was not contradicted. Cumulative evidence, even if newly discovered, is not ordinarily good grounds for a new trial, especially so when the fact is not a controverted one. Henderson v. State, 1 Tex.Crim. App. 432; Branch's Ann. Tex. P. C., Sec. 203.
Three talesmen were challenged for cause. The facts upon which the challenges are based were such as to support the court's ruling in overruling the challenges. Neither of the men sat upon the jury, however. Two of them were excused upon extra peremptory challenges accorded the appellant, and one was excused upon a peremptory challenge by the State. Neither of the men against whom the objection was urged having sat upon the jury, the absence of injury is obvious.
Several bills of exception, covering some fifteen pages of the transcript, are devoted to complaints of the remarks of the State's Attorney in his argument to the jury. The necessity of keeping this opinion within reasonable limits precludes the quotation of the *Page 418 remarks. Such expressions as might with propriety have been omitted from the argument, when considered in connection with the context, fail to impress this court as transcending the limits of legitimate debate. From Pierson v. State, 18 Tex.Crim. App. 564, the following quotation is taken:
"Before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us, 1, that the remarks were improper, and, 2, that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant's rights."
The remarks made in the present instance appear to have been but comments upon facts in evidence and deductions therefrom and made in response to the remarks of counsel for the appellant. When, as in the present instance, complaint is made of an argument of counsel which transgresses no provision of the Constitution or statute, the propriety of its making and its probable effect are not to be measured alone by the words used, but the facts adduced and the issues involved are potent factors in determining the soundness of the complaint.
The following is a synopsis of the State's evidence: About nine o'clock at night, McKenzie was standing upon the street about sixty feet from and opposite a Piggly-Wiggly store. The manager of the store became suspicious and officers were called. Five of them arrived in automobiles. Tate (one of them) said to McKenzie: "I am an officer. What are you doing here?" McKenzie at once began firing from his coat pocket on the left-hand side, and with his right hand drew a pistol from under his arm and continued firing with both pistols. No weapons were drawn, exhibited or used by the officers until after the appellant fired. As McKenzie fired he ran backwards. In all he fired some twelve or fifteen shots. When the first shot was fired, Street and Tate were some six feet from the appellant. Each of the officers testified in substance as above. As the appellant retreated firing, a number of shots were fired at him, which were estimated at about thirty. An instant after the first shot was fired, Street fell to the ground. A shot was fired at him. The appellant escaped to an attic and was arrested the same night. From his possession were taken two pistols which were identified as those used by McKenzie in firing the shots mentioned. These pistols were exhibited to the jury as was likewise the coat worn by the appellant which had a *Page 419 hole in the pocket on the left-hand side. Appellant was wounded in the legs.
A synopsis of the appellant's evidence is as follows: McDaniel, an employee in a business house near the scene, testified that he saw a part of the difficulty; that Street walked up to the appellant and said: "What are you up to?" and that the appellant backed off and a shot was fired. The witness stooped and ran, and as he ran he looked around and saw Tate firing. He ran into the back of the store and came to the front. He then saw Street lying upon the ground. The witness heard nothing else said before the shooting except: "What are you up to?" The witness could not tell who fired the first shot. Edith Morriss, who worked in a shop nearby, saw the appellant standing upon the street, and some minutes afterwards saw a car with men in it drive up. She knew none of them. The first man out of the car had a flashlight in his hand and walked up to the man standing on the sidewalk, flashed a flashlight in his face and asked him what he was up to, and then the shooting started. She heard no other words. She did not know which man first went to the appellant and spoke to him. She did not know whether it was Street or Tate who spoke, but heard the words, "What are you up to, boy?" and then heard a shot fired. McKenzie's hand was in his left pocket when Street walked up to him and the words, "What are you up to?" were spoken. She saw Street who was lying upon the street. In his right hand he had a flashlight. She did not see any pistol in his hand.
The appellant had two gunshot wounds. One was in the right leg below the knee; the other was in the left leg, not quite one-third of the leg from the ankle to the calf. The wound passed downward and backward and indicated that he was shot from the front. The one in the right leg was lower than that in the left. The wounds indicated that they were inflicted while the appellant was facing the person who fired the shots which wounded him. There were no bones broken. None of the wounds were dangerous. They were merely flesh wounds.
It was shown that the officers were not in uniform.
Street was killed by the wounds received.
In substance the jury were informed by the charge of the court that if the appellant was not aware that the parties approaching him were officers or believed himself in danger of serious bodily injury, he would be justified in using such force as appeared to him reasonably necessary to protect himself against danger, real or apparent, *Page 420 and that it was from his standpoint at the time that his conduct was to be viewed, and if so found an acquittal should result. They were also instructed that if he acted upon a reasonable appearance of danger, he would not be chargeable with malice aforethought although he may have used greater force than was necessary under the circumstances for his protection, and that under such circumstances there could be no punishment of more than five years' confinement in the penitentiary. In the instruction mentioned the court seems to have been generous to the accused. The record seems practically without facts to excuse or justify the homicide. There is difficulty in finding any evidence that the appellant was assaulted or in danger of injury or death, or that he so regarded himself.
An assumption that the verdict resulted from the argument which the bills of exception exhibit, rather than from the incidents of the tragedy which the evidence portrays, would be violent indeed.
Confining himself within the record as made upon the trial and having regard for the limitations against personal abuse and other expressions exceeding the limits of proper argument, (Thompson on Trials, 2nd Ed., Vol. 1, chap. 29), counsel for the State may insist upon the infliction of the death penalty. This is illustrated by many decisions of this court. See Thomas v. State, 33 Tex.Crim. Rep.; Calderon v. State, 63 Tex. Crim. 639; Holcomb v. State, 103 Tex.Crim. Rep.; Price v. State, 220 S.W. Rep. 91; Boxley v. State, 273 S.W. Rep. 592; Marshall v. State, 104 Tex.Crim. Rep.. In Thompson on Trials, 2nd Ed. Vol. 1, sec. 965, we find the following:
"Forensic strife is but the method, and a mighty one, to ascertain the truth and the law governing the truth. * * * The right of discussing the merits of the cause, both as the law and the facts, is unabridged. The range of discussion is wide. * * * His illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. To this freedom of speech, however, there are some limitations. His manner must be decorous. * * * So, too, what a counsel does or says in the argument of a cause must be pertinent to the matter on trial before the jury, and he takes the hazard of its not being so."
In appraising the argument, the bills of exception have been treated upon their merits, and their consideration has not been restricted by any fault in their preparation. The same is true with *Page 421 reference to the other bills of exception found in the record. In making this statement, it must be understood that in valuing a bill of exception, the court is bound to take note of the explanation of the trial judge accompanying the bill, unless it be shown over the signature of the judge that the qualification was made against the protest of the accused or his counsel. This court has no means of knowing that a ruling of the trial court is opposed by objection unless it is revealed by a bill of exception. The trial judge has no right to explain, modify or qualify a bill of exception save with the consent of the accused or his counsel. When a bill of exception comes to this court, certified by the trial court and qualified by him, it is bound to presume that it has the consent of the accused or his counsel unless the contrary appears over the certificate of the trial judge. See Revised Civil Stat., 1925, Art. 2237; Thomas v. State, 83 Tex.Crim. Rep.; Exon v. State, 33 Tex. Crim. 461; McKnight v. State, 93 Tex.Crim. Rep.; Anderson v. State, 95 Tex.Crim. Rep.; Clayborn v. State, 100 Tex. Crim. 325; Lilley v. State, 100 Tex.Crim. Rep.; Kemp v. State, 106 Tex.Crim. Rep.; Plattenburg v. State,107 Tex. Crim. 44; 22 Amer. Law Rep. 270. The remarks last made are designed to make it plain that this court has no choice other than to consider in connection with the bills found in the record the qualifying or explanatory statements of the trial court.
The modesty of counsel, who by appointment of the court, represented the appellant upon the trial and in this court, has led them to injustice to themselves in assuming that the present situation in which the appellant finds himself is due to any lack of learning or experience upon their part. Having placed upon them an onerous obligation, the record here bears unmistakable testimony to their ability, their skill, their courage and their fidelity, in discharging the painful duty.
We have failed to discover any evidence that the court was coerced, threatened or in any way influenced by impending mob violence. The appellant's silence upon the trial, on the undisputed evidence touching his mental condition at the time of the trial, appears to have been from choice. If there were matters in his mind of a defensive nature, they were not disclosed by him at the time the motion for new trial was heard.
If, in fact, during the months that have elapsed since the trial of the appellant there has come to light evidence that the haste *Page 422 with which he was brought to trial resulted in depriving him of facts in his favor which have since become available, the Constitution, in its munificence, affords a tribunal with power to relieve him. This court, however, restricted by the rules of law set forth in the statutes and Constitution and by the evidence heard upon the trial, is constrained to overrule the motion for rehearing. It is so ordered.
Overruled.
ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.