In a forceful motion for rehearing, the appellant insists that we were in error in holding the conviction valid. We have heretofore expressed the view that the Constitution failing to fix the venue in criminal cases, and providing that the venue fixed by statute may be changed by the court, irregularities in the order of the court changing it are waived by failure to object to it at the time. Our judgment is, in the instant case, that the appellant having made no objection to the fact that his case was transferred by change of venue from Eastland to Taylor County, and no complaint of the manner in which the change was made, nor the form in which the order was expressed, and having gone to trial in Taylor County without calling in question the jurisdiction of the court therein to try his case, cannot have the judgment annulled on appeal because the venue was changed. See Taylor v. State, 81 Tex.Crim. Rep., and authorities therein cited.
Article 626, giving the trial court power to change the venue upon his own motion, directs that he state in his order the grounds for such change of venue. It does not, however, declare that a failure to state legal grounds, or sufficient grounds, or the entire grounds upon which the court acted shall render null and void the judgment entered changing the venue, and, in our opinion, there is nothing in the statute that requires or authorizes this court to so construe the law. Independent *Page 218 of Article 634, forbidding the revision on appeal of an order changing the venue in the absence of a bill of exceptions, in our opinion, no review of such order could be lawfully made unless it was shown that the venue was changed over the objection of the accused. Our general statute on the subject of the necessity for bills of exceptions would require that the appellant, complaining that the court had unlawfully or irregularly changed the venue in his case, bring forward the reasons and facts upon which his complaint was founded. See Article 744, of the Code of Crim. Procedure, and Article 2059, Revised Civil Statutes. Such is the rule in this and other States, and from it we are aware of no departure. See Cyc., Vol. 12, p. 845-6, note 81.
It is said in motion: "So far as we have been able to find we have never yet seen a case in the English speaking language where a bill of exceptions was required where otherwise the error was disclosed by the record." As we comprehend the subject, no error not fundamental is noticed on appeal unless exception was reserved to it in the court below. A familiar illustration in our practice is that pertaining to application for continuance. The statute prescribes the requisite of an application, and demands that it be in writing, yet it has been held throughout the history of the court that the copy of the application for a continuance, even though there be a recital in the judgment overruling it that its refusal was excepted to, and it further appeared that on motion for a new trial complaint was made of it, still it is not available on appeal in the absence of a bill of exceptions; for the reason that the appellate court, to intelligently review the ruling of the trial court, must of necessity be put in possession of the facts that were before the trial judge and impelled his action. See Nelson v. State, 1 Texas Crim. App., 44, a capital case in which it is held that the order overruling an application for continuance could not be considered on appeal, the court stating:
"The former decisions of our courts, from the earliest days down to the present, make the saving of a bill of exceptions a prerequisite and sine qua non to revisory action by the appellate court. Nor is the failure to do so remedied (as in this case) by incorporating the action of the lower court in the judgment rendered."
In this case many earlier decisions are cited, and in Branch's Annotated Texas Penal Code, Sec. 304, numerous later ones are listed.
The necessity for bill of exceptions to the action of the trial court in the admission of evidence as a predicate for review exists, though an examination of the record on appeal makes it obvious that on proper objection it would have been error to receive the testimony. The same rule applies with reference to the numerous incidents in the trial of a criminal case, the presumption on appeal obtaining that matters which are not complained of in bill of exceptions are waived unless they are fundamental. Cyc., Vol. 12, p. 486. Change of venue *Page 219 being a matter which can be waived, the order will not be reviewed on appeal when not complained of in the court below.
The motion for rehearing is overruled.
Overruled.