Renewed complaint is made of the action of the lower court, who granted appellant's request for a change of venue, because the court sent the case to Williamson county. We can not state the law more correctly or clearly than is done in our former opinion. Appellant asked that the venue be changed. This was done. His reasons were set out in his request. The court evidently agreed with appellant, and finding from his investigation that not only Harris county but the contiguous counties were likely to be affected by the publicity complained of, he sent the case for trial to a distant county deemed far enough away to be beyond the objectionable influences alleged by appellant. No legal objection to a trial in Williamson county was advanced. We think the part of our opinion disposing of this matter correct.
Appellant also urges that we were wrong in upholding the trial court in that he refused to continue the case because of the illness of Judge Taulbee, one of defense counsel. We have examined with interest and care the cases cited in appellant's motion, and have weighed, as best we can, the questions involved. None of the cases cited are on facts of enough similarity to be usable as precedents. If we understand appellant, his main contention is that the three able lawyers who were present during his trial and conducted same, did not have knowledge or familiarity with the jurors of Williamson county as did Judge Taulbee. The record shows that on the 14th of February, 1934, when this case was set for March 19th for trial, Judge Taulbee was then ill, and had continued so up to the last named date, and was too ill to be seen or consulted by the other attorneys in the case. That there were other attorneys in Georgetown, the county seat, and in Williamson county, whose services were *Page 366 available to appellant and who knew well the jurors of the county, — is not questioned. Nor is it suggested, as in a number of cases cited by appellant, that appellant was deprived of counsel to represent him upon the trial. The Jackson case,115 S.W. 263, from which appellant quotes extensively in his motion for rehearing, seems not at all in point. There the trial court compelled one of counsel for the accused, — said in the opinion to be the one most familiar with the case, — to be sworn as a witness, and to go and remain out of the court room under the rule during the trial, he being forbidden to talk with other witnesses, etc., etc., and we correctly held this to be an arbitrary action of sufficient injury to call for reversal. We have examined each of the other cases cited, but are still of opinion that the discretion of the trial court in the instant case was not abused in this regard.
We are next called on to consider whether we correctly decided it was not error to reject the testimony offered from witness O'Callaghan, in effect, that on the night of December 25, 1933, at the office of appellant, to which witness had been called by appellant's son, appellant in witness' presence said repeatedly "I have been robbed." Appellant's proposition regarding this matter is that it was res gestae, and hence admissible. We have carefully examined the record to see if we can answer the query as to what this might be res gestae of. The only possible answer would be, — if we speak from the record, — res gestae of some matter or occurrence not otherwise proved or put before the jury. What was the matter, transaction or fact of which this was res gestae? When did it occur? What took place? To each of these we would be compelled to answer that we do not know. As stated in the bill of exceptions, the witness would have testified that appellant said "I have been robbed." Appellant did not testify in this case that he had been robbed of Mrs. Pipkin's money. If he had, we would have a different question. Nor did he introduce any witness to so swear either directly or circumstantially. Such statement is wholly devoid of a single circumstance identifying the robbery. The State proved that appellant drew out of a bank on December 23, 1933, 345 one hundred dollar bills, the property of Mrs. Pipkin, representing a judgment or settlement which appellant had made for her. On this trial Mrs. Pipkin swore that she had never gotten her money in any form. The State further showed by proof that in February, 1934, appellant bought a cashier's check for $2500.00, paying therefor 25 one hundred dollar bills, which the banker swore was a very unusual transaction. On another occasion about *Page 367 the same time, it was shown that appellant went into said bank and gave the receiving teller $1700.00 in one hundred dollar bills. Appellant argues in his brief and motion for rehearing that the statement of the witness referred to was res gestae of his robbery by some unknown party in which Mrs. Pipkin's money was taken from him.
We adhere to our conclusion expressed in our former opinion that the statement under discussion was inadmissible. As we view the matter, the trial court was justified in holding said statement to be a self-serving declaration. Exculpatory statements of the accused, though made by him at the time of his surrender after the commission of the offense, may be self-serving and inadmissible. Allen v. State, 17 Texas App., 637. See also of such declarations made in fifteen minutes after the alleged commission of the offense, Stephens v. State, 20 Texas App., 255. See, also, Clore v. State, 26 Texas App., 624; Caldwell v. State, 12 Texas App., 302; Bradberry v. State, 22 Texas App., 273; Angus v. State, 29 Texas App., 52; Cockrell v. State, 32 Tex.Crim. Rep.. In Pharr v. State, 10 Texas App., 487, we said: "Declarations made by a defendant in his own favor are not admissible in his behalf unless part of the res gestae, or part of a confession offered by the prosecution; or unless coming within the rule that when part of an act, declaration, etc., is given in evidence the whole may be required." We recognize that any relevant transaction, in a given case, may have its own res gestae, but certainly to make admissible anything asserted to be such res gestae, a predicate would have to be laid showing such other transaction to be in fact relevant to the case on trial.
Explanatory, — the State rested its case upon this trial without a word relating to any transaction in appellant's office December 25, 1933. Appellant put Payne on the stand, a police captain of Houston, who swore that at about 7:15 P.M. on said day he was called to appellant's office and got there in five or more minutes, and found appellant and others there. Appellant's son was bathing appellant's face. O'Callaghan, the elevator man in the building, testified he carried appellant's son up to the tenth floor about 7:10 P.M. on said date, and about the time he got back down he was called back up and asked by appellant's son to come with him to appellant's office. When they got there appellant was lying on the floor and appeared to have urinated in his pants and to be drunk. There was foam in the corners of his mouth, his neck tie was cut, a whisky bottle lay on the floor, and the safe was open. Murray, also *Page 368 an elevator man in said building, testified he carried appellant up to his office about 5:20 P.M. that same day. He said appellant seemed sober. The police captain referred to was recalled and said he saw the safe open, and observed that appellant appeared to be not at himself, but that he came around while witness was there and made statements as to what had happened, which statements are not in evidence. Giving full effect to all the above, we see in same no sort of proof of a transaction relevant to the charge against appellant of the embezzlement of the money of Mrs. Pipkin. As said in our former opinion, neither appellant nor his son testified, and no predicate was laid for any tangible claim that the rejected testimony of O'Callaghan as set out in bill 22, or the rejected testimony of Mr. Payne as set out in bill 20, or the other testimony set out as rejected in bill 21, — was res gestae of any transaction shown otherwise than as above stated, — to be pertinent or relevant. In his qualification to said bills of exception the court states that officer Payne testified that while appellant was making the explanation to him of what occurred, appellant seemed to be cool, calm and collected, and narrated the matters intelligently.
We have again gone carefully over the facts expected of the witness Anglin, claimed by appellant to have been discovered by him after the testimony herein was closed, the court having declined to permit the case to be reopened in order that said witness might testify. This witness testified before the court that he had told one of appellant's attorneys before the first trial of this case all the same facts as set out by him which he would have testified to if used as a witness. It was disclosed by this witness that after telling said attorney in Houston of the facts which he proposed to testify herein, that this witness came to Georgetown, Texas, where the case was on trial, at a date previous to the instant trial; that he stayed at the same hotel where appellant and his attorneys stayed, and that he was not used or called as a witness. In addition to what we said in our former opinion in disposing of this matter, there seems also to be an entirely lack of diligence.
The remark of State's counsel complained of in bill of exceptions 26, in effect, that appellant only hoped for another hung jury, as we have already observed, was promptly stricken out and the jury told not to consider same, and we are not of opinion that such matter was of that hurtful character as to require reversal because of the remark being made in the presence of the jury. Probably every man fit for jury service knows *Page 369 that a man who is acquitted can not be again tried for the same offense. It being before this jury from several legitimate sources that appellant had been tried for this offense at a former time, the men composing the jury would reasonably therefrom know that he had either been convicted and given a new trial, or that the jury had disagreed. We think there is no merit in the contention, and that the matter was properly disposed of in our former opinion. Smith v. State, 52 Tex.Crim. Rep.; Douglas v. State, 58 Tex.Crim. Rep.; Watson v. State,82 Tex. Crim. 305; Alexander v. State; 84 Tex. Crim. 185; Reese v. State, 87 Texas Crim Rep., 245; Barnard v. State, 87 Tex.Crim. Rep.. Most of these cases relate to misconduct of juries, but are analogous in principle.
We have gone over each and all of the complaints set out and presented in appellant's motion, as carefully as we can, and repeat what we said in substance in our former opinion, that to discuss all of said matters would but lengthen this already long opinion without affecting the result, and without benefit to the body of the law or to the profession.
The motion for rehearing is overruled.
Overruled.
ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING