The offense is robbery by firearms; the punishment, death.
About 12 o'clock midnight, July 20, 1937, appellant and two men entered the Walgreen Drug Store in the city of Houston. Appellant exhibited a pistol, and he and his companions forced N.J. Powers, manager of the store, to stand by while they took approximately $380 from the cash registers. In the meantime police officers, who had been informed that the robbery was in progress, entered the store. Appellant emptied his pistol at *Page 579 one of the officers, wounding him in the left arm. Appellant did not testify, and introduced no witnesses.
Appellant filed an application for a change of venue, attempting to allege prejudice and a dangerous combination of influential persons. We quote from the application, as follows: "The general prejudice against defendant is not a prejudice against him personally, but is a prejudice against all persons charged with offenses of the character of the offense charged by the indictment against this defendant, and arises from the fact that the offense of robbery by firearms has become rather common in Harris County and especially in the City of Houston."
The allegation as to a combination of influential persons goes no further than to charge that there was a combination of the mayor and police officers of the City of Houston to suppress lawlessness and crime generally. The State's replication was in effect a general denial. Article 562, C. C. P., reads as follows:
"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 is a dangerous combination against him instigated by influential persons, by reason of which he can not expect a fair trial."
Article 567, C. C. P., provides: "The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the application granted or refused, as the law and facts shall warrant."
We quote from 12 Tex. Jur., p. 460, as follows: "There must be some prejudice against the defendant, that is, there must be a prejudgment of the fact that the defendant is guilty; it is not sufficient that the atrocious nature of the crime has aroused public sentiment against the unknown offender. But it may be either prejudice against the accused personally or against his *Page 580 case. In other words, it may arise from a prejudgment of the cause, since prejudice and prejudgment mean the same thing."
We think the application goes no further than to charge that the citizenship of Harris County was prejudiced against the offense of robbery by firearms. It is admitted in the application that prejudice was not entertained against the appellant personally. Obviously, the application fails to set up that character of prejudice referred to in the statute. The combination referred to in the statute is one which is formed with reference to and against the particular individual. 12 Tex. Jur., p. 459. In Cravey v. State, 5 S.W. 162, this Court said: "A general combination of influential persons to suppress lawlessness and crime generally is not such a combination as is contemplated by the statute. The statutory combination is one which is formed with reference to and against the particular individual."
Appellant takes the position that it was incumbent upon the trial court to change the venue because the answer of the State failed to attack the credibility of the persons making the affidavit for a change of venue, or their means of knowledge. If it should be held that the replication of the State is insufficient, it would not follow that it was the duty of the trial judge to grant an application which failed to set forth any of the statutory grounds. It is observed that no evidence was heard when the application was presented. If appellant had supported his averments by uncontroverted testimony the trial court would have been warranted in declining to change the venue. It follows that we are constrained to overrule the appellant's contention.
Several bills of exception relate to the action of the trial court in refusing to permit appellant to introduce in evidence upon the hearing of the application for a change of venue certain newspaper articles relating to offenses committed by persons other than appellant. We quote the qualification appended to one of said bills as follows: "Defendant's alleged offense happened on the 20th day of July, 1937, and his trial was on the 29th day of November, 1937, and the circulation manager referred to in this purported bill of exception by the defendant was offered by the defendant to prove that on November 22, 23 and 24, 1937, articles appeared in the newspaper he was connected with, regarding the wounding of a police officer named Fondren by a person in no way connected with this defendant or his case, while attempting to escape after committing a robbery, and the court offered to permit the defendant to prove all of said incidents if it were his intention to show *Page 581 in connection therewith by said witness or any witnesses that any person or persons expressed any prejudice against the defendant personally or his case, or that there existed any combination against the defendant personally or his case, and this the defendant failed to do, and in none of said articles referred to was there any claim that the defendant's name or his case was even mentioned, and this court is, therefore, not certifying that there was any prejudice or prejudgment against the defendant or his case, or that there was any combination against the defendant or his case in Harris County, Texas."
As qualified, the bills fail to reflect error.
The judgment is 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.
ON MOTION FOR REHEARING.