Indicted for murder the appellant was convicted of aggravated assault and a penalty assessed of one year and one day in jail.
An indictment was returned by the Grand Jury of Wood County charging that appellant "in the County of Wood and State of Texas, did then and there unlawfully with malice aforethought, kill and murder Bura Browning by then and there striking and hitting the said Bura Browning with a baseball bat."
The evidence introduced shows that deceased was struck with a baseball bat in Camp County and died later in Wood County from the injuries thus received. His case came to Camp County by change of venue. Appellant claims that since the indictment alleges an offense committed in Wood County while the proof shows the fatal blow was struck in Camp County, there is a fatal variance.
Art. 195, Chapter 2, C. C. P. (1925), reads as follows:
"If a person receive an injury in one county and dies in another *Page 549 by reason of such injury, the offender may be prosecuted in the county where the injury was received or where the death occurred."
Art. 210 of the same chapter is as follows:
"In all cases mentioned in this chapter, the indictment or information, or any proceeding in the case, may allege that the offense was committed in the county where the prosecution is carried on. To sustain the allegation of venue, it shall only be necessary to prove that by reason of the facts in the case, the county where such prosecution is carried on has jurisdiction."
These two articles sufficiently answer the contention of appellant and constitute specific statutory authority for the indictment and prosecution of the appellant under the above allegation in Wood County. A similar question received a rather exhaustive examination and discussion in the case of Compton v. State, 105 Tex.Crim. Rep., the effect of which was to hold against the present contention of appellant. We do not think it necessary to again review the question and feel unable to add anything to what was said in the Compton case, supra.
Bill of Exception No. 2 presents the question of the Court's ruling in refusing to permit appellant to reproduce the testimony of a non-resident witness given upon a former trial of appellant for the offense of driving a car while under the influence of intoxicating liquor on the night of the trouble in question. We infer from this bill that appellant had been indicted and previously tried for the above offense of driving a car while intoxicated and that at said trial a witness alleged to reside at the time of the trial of the instant case in Oklahoma gave testimony material to one of the issues made in this case and that the Court refused to permit the reproduction of such testimony. The matter is, we think, insufficiently presented by the bill, but supplying what is omitted by proper inferences, it appears that the issues on the two trials were not the same. The rule has been stated as follows: The testimony of a witness at a former trial of the same cause or another cause presenting the same issues between the same parties may be shown in evidence. Bishop's New Criminal Procedure, Vol. 2, Paragraph 1196; Hart v. State, 15 Tex.Crim. App. 225.
The difference between the issues presented under an indictment charging the offense of driving a car while intoxicated and one presenting a charge of murder is too obvious to require discussion.
The charge of the Court taken as a whole and in connection with the special charges given at the request of the appellant presents, we *Page 550 think, fairly and correctly the issues of law made by the pleadings and evidence.
The evidence being sufficient and no errors appearing, 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.