Frizzell v. State , 30 Tex. Ct. App. 42 ( 1891 )

WHITE, Presiding Judge.

Appellant was indicted in the District Court of Comanche County for the murder of his wife, A. A. Frizzell, in said county on or about the 24th day of January, 1891. It appears that within a very short time after the indictment was found a trial was had in the Comanche County District Court, and that the defendant was convicted at the February term, 1891, of said court. This conviction on motion of the defendant was set aside, and on the 26th of February the court of its own motion and for the reason: “It appearing to the court that by reason of the great notoriety and excitement caused by this cause, and the consequent prejudices and opinions formed, that a new trial alike fair and impartial to the accused and the State can not be had in this county, it is accordingly further ordered that the venue of this cause be and the same is hereby changed and transferred to Taylor County, Texas, and to the District Court thereof, the same being situated in the Forty-second Judicial District.”

1. At the March term of the District Court of Taylor County the defendant pleaded to the jurisdiction of the court upon the ground thatthe venue was changed without his consent from Comanche County, and that the reason stated by the court for the change of venue was insufficient in law, but if sufficient then under the law the venue should have been changed to Eastland County in the Forty-second District, because the court house of said Eastland County was the nearest court house to the said Comanche County. That Callahan County is the next nearest county seat to Comanche County, and is also in and part of the Forty-second Judicial District, and that neither in Eastland nor Callahan Counties was there any excitement or prejudice in connection with this case, and a trial alike fair and impartial to both the defendant and the State could be had in either of these counties. That the court house in Taylor County is the farthest in the Forty-second Judicial District from the court house in Comanche County, and the defendant prayed the court to hear evidence in these matters stated in his plea.

This plea to the jurisdiction was overruled by the court, and the supposed error in the ruling is the first point made by defendant’s counsel in their brief in this case. By article 576, Code of Criminal Procedure, the district judge is authorized, where he is satisfied that a fair and impartial trial can not be had in the county where the case is pending, upon his own motion to change the venue to any county in his own or an adjoining district. See also Brown v. The State, 6 Texas Ct. App., 286; Cox v. The State, 8 Texas Ct. App., 254; Boyett v. The State, 26 Texas Ct. App., 689; McCoy v. The State, 27 Texas Ct. App., 415; Willson’s Crim. Stats., sec. 2200.

It is only where an application for a change of venue is made in behalf of the State or in behalf of the defendant that the venue is required to be changed to the nearest county to the county where the prosecution is pending. Code Crim. Proc., arts. 577-582. And the discretion conferred upon the district judges by article 576 is not restricted by article 581. The action of the court in changing the venue upon its own motion will not be revised upon appeal unless it be shown that the defendant has been materially prejudiced thereby. Bohannon v. The State, 14 Texas Ct. App., 271; Woodson v. The State, 24 Texas Ct. App., 153. The court did not err in overruling defendant’s plea to the jurisdiction. Where the venue has been changed upon motion of the court the defendant is not prejudiced in his rights to move to change the venue from the county to which the court has changed it, if he can show any of the statutory grounds provided for as reason for the change of venue in the first instance. Thurmond v. The State, 27 Texas Ct. App., 347. In this case, after the defendant’s plea to the jurisdiction was overruled, he did not interpose an application for a change of venue from Taylor County, and there is no reason shown by him why the venue should have been changed from said last named county.

2. Defendant filed an application for continuance based upon the absence of several witnesses by whose testimony he mainly expected to prove facts and circumstances tending to establish the defense of insanity, which was the main defense relied upon in the case. In qualifying or explaining the bill of exceptions reserved to the overruling of this application for a continuance, the trial judge states that it was in fact a second application for continuance. The prosecution contested the application for a continuance on the ground of want of diligence, and in our opinion sufficient diligence is not shown. The learned trial judge’s explanation moreover shows that on the trial four of the witnesses named in the application appeared, three of whom testified, and the other was presented and tendered to the defendant, but was not put upon the stand by him as a witness. Most of the facts proposed to be proved by a majority of the absent witnesses were proved by witnesses who testified on the trial. We do not believe that with the additional testimony of the absent witnesses a more favorable verdict for the defendant would result, because it appears that all the material facts connected with his plea of insanity have been fully developed by the evidence of the witnesses who testified.

It is a well established rule that it is only in a case where from the evidence adduced upon the trial we would be impressed with the conviction, not merely that the defendant might probably have been prejudiced in his right by overruling his application for a continuance, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted, that a reversal should be granted. Covey v. The State, 23 Texas Ct. App., 388; Browning v. The State, 26 Texas Ct. App., 432. It is not made to appear that the court erred in overruling the application for a continuance.

3. Defendant’s second bill of exception was reserved to the admission by the court over his objection of testimony to the effect that the defendant had stated some months prior to the killing that if deceased did not live with him she should not live with any one else. Defendant objected to this testimony upon the ground that it was remote and indefinite. Antecedent threats are always admissible as proof of express malice, and it was not error to admit this testimony. Smith v. The State, 43 Texas, 643; Anderson v. The State, 15 Texas Ct. App., 447; McKinney v. The State, 8 Texas Ct. App., 626; Willson’s Crim. Stats., secs. 1037, 1043.

4. Defendant’s third bill of exception was saved to the action of the court permitting the prosecution over defendant’s objection to put in evidence some of the clothing worn by deceased at the time of the • killing and to exhibit the shot holes in said clothing to the jury. This was not error. Hart v. The State, 15 Texas Ct. App., 202; Levy v. The State, 28 Texas Ct. App., 203.

5. Defendant’s fourth bill of exception was reserved to the language of the district attorney in his closing argument to the jury, to the effect that “the defendant was a tramp, a vagabond, and a villain.” In qualifying this bill of exception the learned trial judge says “the counsel for the defendant interrupted the speaker and stated the language objected to; he did not request the court to instruct the jury with relation thereto;” and the court remarks that at the time he was not impressed with the idea that it was necessary, because in reply to the objection that the prosecuting attorney was out of the record, the prosecuting attorney stated to the jury “that if the facts do not authorize the inference that the defendant was a tramp, vagabond, and villain, rather than an insane person, then he was mistaken.” We are of the opinion that no injury is shown by this bill of exception. . It is not shown that the remarks were such as under the circumstances were calculated to illegally affect the defendant’s rights. Walker v. The State, 28 Texas Ct. App., 503; Willson’s Crim. Stats., sec. 2321.

6. Defendant’s fifth bill of exception was reserved to the action of the court in refusing to give defendant’s special requested instruction with regard to the issue of insanity. The court did not err in refusing to give this instruction, because the law applicable to that phase of the case was fully, fairly, and favorably for the defendant submitted in the general charge already given by the cpurt to the jury, which charge was in conformity to the rules upon that subject laid down by the statute and the decisions of the courts of this State. Leach v. The State, 22 Texas Ct. App., 280; Willson’s Crim. Law, secs. 81, 85, 90; and Penal Code, arts. 39, 40.

7. To the objection that the charge of the court omitted to instruct the jury to apply the reasonable doubt as between the several degrees charged on, we reply such omission is not error when the court has applied the reasonable doubt to the whole case, except in this, where the court has refused special instructions covering the omission. McCall v. The State, 14 Texas Ct. App., 353; Hall v. The State, 28 Texas Ct. App., 146. But in this case this objection urged to the charge is not borne out but is directly contradicted by the record, because in the eleventh paragraph of the charge the court expressly instructs the jury with regard to the reasonable doubt as to murder in the first and second degrees.

8. Another objection urged to the charge is that it did not instruct the jury anywhere that in case they found defendant was insane at the time of the killing they should acquit him. Ao special requested instruction was asked by the defendant upon this phase, and the court did instruct the jury in connection with its charge upon the law of insanity, “should you acquit the defendant on the ground of insanity the jury will so state in their verdict.” This is almost literally in the language of the statute, Code of Criminal Procedure, article 722. In the absence of any special requested instruction upon the point we think the charge of the court was sufficient and was not calculated in any respect to mislead the jury or create a wrong impression upon their minds to the injury of the defendant.

9. It is insisted that the evidence is insufficient to support the verdict and judgment. It is claimed for the defendant that he established his defense of insanity and should have been acquitted on that ground.

We have given the record a most mature consideration in the light of the evidence concerning the horrible and unnatural crime for which appellant has been tried and convicted, the murder of his own wife, and we have been unable to find any testimony which would warrant us to conclude that the act Avas committed in a state of insanity and when defendant was incapable of entertaining that criminal intent essential to the crime of murder because his mind was so far dethroned of reason as that it could truthfully be said he was irresponsible for his acts.

Aothing has been made to appear to us in the record or in the earnest brief of the counsel for the appellant which has for a single moment caused us to question either the fairness and impartiality of the defendant’s trial in the court below or the justice and legality of the conviction in this case. Therefore the judgment of the lower court is in all things affirmed.

Affirmed.

Judges all present and concurring.