Hill v. State , 123 Tex. Crim. 552 ( 1933 )

LATTIMORE, Judge.

Conviction for murder; punishment, twelve years in the penitentiary.

We do not see any good to come from setting out the facts at any length. Deceased was engaged in running a dairy, and permitted some of his cows to run on the commons without being as carefully herded as they might be, and, in an altercation arising out of this situation, he was killed. The cuts and bruises on his body were described by several witnesses.

The chief complaint in this case seems to relate to supposed errors connected with the' change of venue. The venue was changed from Tom Green county, where the killing occurred, to Taylor county. No bill of exception was taken to the court’s action in ordering such change, but a motion was made in Taylor county to dismiss the case for want of jurisdiction. We do not think the act contained in chapter 8, Acts of First Called Session, 39th Legislature, p. 12, one clause of which repealed article 568, C. C. P., 1925, obviates the necessity for the taking of a bill of exception to the action of the court in ordering a change of venue, when deemed objectionable. All through said act it is manifest that its purpose was to give more time' for the preparation of bills of exception in certain cases than had been theretofore allowed. Referring to bills of exception regarding change of venue, and other matters occurring before the actual trial, and to misconduct of the jury, and to other matters arising after such trial but probably out of the presence of the court, it is said: “All such statements of facts and bills of exception pertaining to any and all of such matters, shall be filed within the same time as is prescribed for bills of exception, etc., occurring during the actual trial of such causes.” The wisdom and necessity for holding it necessary to take such bills of exception is here exhibited. In the qualification to the bill of exception taken to the action of the judge in Taylor county in refusing to dismiss the case, there appears a statement certified to by the district judge of Tom Green county, made a part of such qualification, setting out that appellant wanted the venue changed from Tom Green county, and informed said judge that he purposed asking therefor, but was, told by said judge that he was going to change the venue of the case of his own motion, and that in trying to agree on a county to which the case should be sent, appellant objected to-certain counties in the same district, and to the county seat of Runnels county, an adjoining county, and asked that the venue be changed to Tarrant county, but the court refused this because of distance, expense, etc., and of his own motion changed the venue to Taylor county, distant from Tom Green county only about twenty-five miles at nearest points, and whose county seat had direct railway connections with that of Tom Green county. Without discussing the impropriety of putting into a. qualification such matters as are above referred to, it is manifest that opportunity ought to be afforded the trial court of the county from which the venue is changed of stating, in qualifications to a bill of exception, if necessary, the facts and surroundings attending and pertinent to such change of venue. We are of opinion that one desiring to make complaint of a change of venue in his case should be required to take his bill of exception in the court a quo, and that he should have same approved within the statutory time for the approval of such bills, and that he can not resort to a plea to the jurisdiction of the court to which the case is sent in lieu of such bill of exception. Appellant complains in his brief of the insertion in the qualification to his bill No. 5, which presents the objection to the overruling of his plea to the jurisdiction, of the statement made by the judge of the Tom Green district court, but we find no-exceptions to such qualifications.

Another complaint is set out in the same bill of exception, viz: that the original transcript of the proceedings had in Tom Green county, which was sent by the clerk of the district court of said county to the clerk of the district court of Taylor county, contained no certified copy of the order of the judge of the district court of Tom Green county convening a special term of his court on July 18, 1931, at which time a judgment was entered directing a nunc pro tunc entry upon the minutes of said court as of date July 4, 1931, at which time it appeared that the case was actually transferred on change of venue to Taylor county, as shown by a docket entry of date July 4, 1931. Suffice it to say that article 570, C. C. P., contains specific directions as to what should be sent in such case by the clerk of the court from which venue is changed to the clerk of the court to which the case is sent, and nothing therein set forth seems to include or make necessary a certified copy of any order calling such special term. However a duly certified copy of such order does appear, and is in the bill of exception under discussion.

Appellant’s bill of exception No. 7 sets out three pages of questions and answers with no certificate of the trial judge that there was any necessity for the preparation of a bill in such fashion. Said bill recites that the state’s objection to the above testimony was sustained. Citation of authorities is not deemed necessary to show that such a bill cannot be considered. It is in violation of the statute. Article 760, C. C. P.

Bill of exception No. 8 complains that a state witness in rebuttal was allowed to describe the many cuts on the body of deceased. When asked to so describe them, the bill states that appellant objected on the ground that this was not in rebuttal; that this would be inflammatory and prejudicial. Neither ground of objection is supported by any recital of facts in the bill. To entitle such bill to consideration, it should in and of itself manifest the error complained of.

Bill of exception No. 1 complains of the fact that a daughter of deceased was allowed to testify that she witnessed part of the difficulty in which her father was killed, and that, as she was going toward the place where it occurred, she met appellant and his son, both of whom participated in the affray, and both of whom were indicted for this murder, coming down a road which she was crossing. She was asked if they said anything to her. This was objected to as irrelevant and prejudicial. We doubt the sufficiency of the objections, but the witness testified that either appellant or his son stated to her, “Get out of the way or we will run over you.” The trial judge certifies that this was admitted as part of the res gestae, that it occurred within one hundred and fifty yards of where the killing had taken place and within a few moments after same. We perceive no error in the ruling.

If there was any doubt as to the propriety of allowing the widow of deceased to testify to the number and ages of her children, it would not appear of sufficient weight or materiality to call for a reversal of the case, especially in view of the fact that four of said children testified, and reference was made by witnesses, without objection, to several smaller ones.

Bill of exception No. 3 sets out objection to the testimony of the wife of deceased that shortly before the killing deceased left her to go to the place where the difficulty occurred, and that she remonstrated with him for going, and that he replied to her, “Can’t men talk anything over reasonably, without making a fuss,” and left her. The bill of exception reveals that, this was part of a conversation first gone into by appellant in his cross-examination of this witness. Such being the case, he has no right to complain. See article 728, C. C. P.

Bill of exception No. 4 presents complaint that a witness, was allowed to say that, in talking to appellant prior to this homicide, in which appellant was describing the actions of deceased in permitting his cattle to run at large and of his purpose of filing a complaint against deceased for such conduct, appellant’s face was flushed with anger, and he was very bitter-in his attitude toward deceased. We think this testimony was. admissible.

Finding no error in the record, the judgment will be affirmed..

Affirmed.