Gates v. State

*236ON APPELLANT'S MOTION FOR REHEARING.

CHRISTIAN, Judge.

In his motion for rehearing appellant reiterates his contention that- the district court of Polk County was without jurisdiction to proceed with the trial. It is appellant’s position that the order of the district court of Walker County changing the venue to Polk County is void, in that it fails to state that the judge was of the opinion that a trial, alike fair and impartial to appellant and the state, could not be had in Walker County. The change of venue to Polk County was upon the court’s own motion. Article 560, C. C. P., reads as follows: “Whenever in any case of felony the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, can not, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds .for such change of venue.”

It does not appear that appellant questioned the sufficiency of the order of transfer until he filed his motion for new trial. It is true that he filed a written protest against a trial in Polk County and embraced therein the order changing the venue to such county. However, the reasons asserted by appellant in support of his contention that the case should not be tried in Polk County were that the transfer “was voidable, irregular, unfair, and against good practice, and against the public policy of this State”; that the transfer was made for the purpose of imposing an “extra and added punishment of this defendant”; that such transfer was made because the appellant was ill at the time the case was set for trial in Walker County and was preparing to seek a continuance; that the action of the district judge of Walker County in transferring the case on his own motion without attempting to get a jury was arbitrary. Appellant failed to point out in his protest that the order changing the venue embraced no statement that the judge of the district court of Walker County was satisfied that a trial, alike fair and impartial to appellant and to the State, could not be had in Walker County. As already pointed out, no specific contention was made that the order of transfer failed to comply with the provisions of Article 560, supra, until the motion for new trial was filed and presented. The complaint came too late.

The order of transfer was not void notwithstanding its failure to embrace a statement to the effect that the judge of *237Walker County was satisfied that a trial, alike fair and impartial to appellant and to the State, could not be had in Walker County Baker v. State, 220 S. W. 326. As said in Baker’s Case: “The court having power granted by the Constitution to change the venue, its failure to observe the legislative regulations requiring that the reason for the change be embraced in the order would not vitiate the order, in the absence of an abuse of discretion, which, to receive attention on appeal, would have ■ to appear in some authentic form, recognized by law, so that this court would know that there was an abuse of discretion. In the absence of some authentic information to the contrary, the presumption that the court did not transcend its authority obtains * * The order not being void, it follows that, under the circumstances reflected by the record, the district court of Polk County was not without jurisdiction to proceed with the trial. See Taylor v. State, 197 S. W. 201.

Appellant reiterates his contention that the district court of Polk County was without jurisdiction because of the fact that the order of transfer failed to show the proper reasons for not changing the venue to one of the counties adjoining Walker County. It is observed that under Article 560, supra, when the venue is changed upon the court’s own motion the court is authorized to transfer the case to any county “in his own, or in an adjoining district.” If we comprehend the record, appellant failed to make the contention now under consideration until he filed and presented his motion for new trial. This was too late. Under the circumstances, the district court of Polk County was not without jurisdiction. See Taylor v. State, supra.

Appellant renews his contention that bill of exception No. 8 reflects reversible error. It is observed from the bill that appellant filed an application for a change of venue but failed to procure the affidavits of compurgators; that when the case was called for trial appellant offered to testify to the effect that he had talked to a number of citizens in an effort to obtain compurgators ; that these citizens had stated to him that they did not believe he could obtain a fair and impartial trial in Polk County but that they were unwilling to sign as compurgators in view of the prominence of deceased’s relatives living in Polk County. The court declined to permit appellant to give such testimony and apparently sustained the State’s, exception to the application for a change of venue. Under the decisions of this court the bill of exception fails to reflect error. In Sanchez v. State, 236 S. W. 734, this court said: “A motion to change the venue upon the ground of prejudice was prepared and sworn to by the appel*238lant, but compurgators were not obtainable. These were essential to require its consideration as an application upon the part of the appellant.” We quote from Gibson v. State, 110 S. W. 41: “It has even been held that, where there was filed an affidavit alleging the existence of so great a prejudice in the county against him as to prevent a fair trial, but that persons could not be induced to make affidavit of such prejudice, and defendant asked for process for certain persons, residents of the county, who, affiant believed, would testify to the existence of such prejudice, the application did not comply with the statute. Mitchell v. State, 43 Tex. 512; Wall v. State, 18 Tex. 683, 70 Am. Dec. 302. This question was fully considered in the case of Willis Maclin v. State (decided at the recent Dallas term) 109 S. W. 145, where we reached the same conclusion and made the same holding.”

After carefully considering all other complaints set forth in the motion for rehearing, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

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.