In his motion for rehearing appellant insists that we were in error in not sustaining his complaint because the court declined to change the venue. The substance of the evidence upon the issue is very fully set out in our original opinion showing the evidence was in conflict on the question of whether appellant could secure a fair trial in the county; the evidence upon the point preponderating in favor of the State. The principles by which the trial court is to be governed in determining such question is stated in Carlile v. State, 96 Tex.Crim. Rep.,255 S.W. 990, as follows:
"The statute fixes the measure of the court's duty upon an application for a change of venue, namely, to grant the motion where, upon the uncontroverted motion or upon the evidence adduced, it is made to appear that there exists in the county `so great a prejudice against (the appellant) that he cannot obtain a fair and impartial trial.' Code of Crim. Proc., art. 628. The burden is upon the appellant to prove the existence of such prejudice, and, where evidence is heard, the issue is to be determined by the trial court. The discretion is upon the trial court to weigh the evidence, and, if from it there arises two conflicting theories, the trial court has the discretion to adopt either. In the absence of the abuse of this discretion, the judgment will not be disturbed on appeal. If, however, the evidence is such that it leads to the conclusion that the bias, prejudice, or prejudgment of appellant or his case is such as renders it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application. Dobbs v. State, 51 Tex.Crim. Rep.,103 S.W. 918. Injury is shown when it is made evident that under the procedure provided *Page 509 by law it is improbable that an impartial jury can be impaneled to determine the guilt of the accused, and a change of venue is denied. Barnes v. State (Tex.Crim. App.), 59 S.W. 883; Randle v. State, 34 Tex.Crim. Rep., 28 S.W. 953; Cox v. State,90 Tex. Crim. 106, 234 S.W. 72, and cases cited."
Later cases approving the announcement in Carlife's case are Walker v. State, 98 Tex.Crim. Rep., 267 S.W. 988; McNeeley v. State, 104 Tex.Crim. Rep., 283 S.W. 522; Walker v. State, 60 S.W.2d 455. From a review of all the evidence relating to the request for change of venue we find nothing which leads to the conclusion that the learned trial judge abused the discretion vested in him to determine the matter.
The motion for rehearing is overruled.
Overruled.