Willard v. State , 129 Tex. Crim. 384 ( 1935 )

The State, through the District Attorney and Assistant District Attorney of Travis County, has filed a motion for rehearing insisting that we were in error in our disposition of the case. The motion reveals much labor and research, and counsel are commended for their interest in following on appeal cases prosecuted by them. Authorities to which we are referred have been examined, but the conclusions reached originally are not thought to be erroneous.

We advert only to the point regarding the averment in the indictment that the offense was committed in Travis County. We are cited to Compton v. State, 105 Tex.Crim. Rep.,289 S.W. 54; Stone v. State, 111 Tex.Crim. Rep., 15 S.W.2d 18; Barnes v. State, 104 Tex.Crim. Rep.,284 S.W. 577, as thought to be out of line with our holding in the present case. It will be noted that all of the offenses dealt with in the cases mentioned are found enumerated in Chapter 2, Title 4 of the Code of Criminal Procedure permitting prosecutions in counties other than those in which the offense was committed, and in which the averment of venue is controlled by Art. 210 of the same Chapter, which article reads as follows: "In all cases mentioned in this chapter, the indictment or information, or any proceeding in the case, may allege that the offense was committed in the county where the prosecution is carried on. To sustain the allegation of venue, it shall only be necessary to prove that by reason of the facts in the case, the county where such prosecution is carried on has jurisdiction."

There is found in the Acts of the 43rd Leg., 1st C. S., Ch. 90, page 234, under which the instant prosecution proceeded, a provision fixing venue in Travis County, but there is no such enactment as is contained in Art. 210 making it sufficient to allege that the "offense was committed in the county where the prosecution is carried on." A case which we regard as precisely in point, when the circumstances under which it arose are understood, is Mischer v. State, 41 Tex.Crim. Rep.. There accused was prosecuted for rape. That offense is now found enumerated in Chapter 2, Title 4, C. C. P., and is now controlled by Art. 210 so far as the averment and proof of venue is concerned. However, it was not embraced in said Chapter in 1899, the time of the prosecution in Mischer's case. In 1897 (Acts 1st C. S., page 16) the Legislature passed a law providing as follows: "Prosecutions for rape may be commenced and carried on in the county in which the offense is committed, or in any county of the judicial district in which the offense is committed, or in any county of the judicial district the judge of which resides nearest the county seat of the county in which the offense is committed. When the judicial district comprises only one county, prosecutions may be commenced and carried on in that county, if the offense be committed there, or in any adjoining county."

There was an omission to further provide that an averment in the indictment that the "offense was committed in the county where the prosecution was carried on" would be sufficient, just as the Legislature omitted to so provide in prosecutions under the law against which appellant is charged to have offended; but in both cases the law placed venue in counties other than the one in which the offense was committed. In Mischer's case the offense was committed in Colorado County. The indictment was returned by a grand jury in Guadalupe County, which was in the same judicial district with Colorado County. The indictment, although returned by the Guadalupe County grand jury, alleged that the offense was committed in Colorado County, where it actually occurred. This Court said: "* * * in our opinion, it was properly alleged in the indictment, which was found and presented by a grand jury of Guadalups County, that the offense was committed in Colorado County. In Chivarrio v. State, 15 Texas Appeals 330[15 Tex. Crim. 330], this question was decided. That was a case where the offense was committed in Encinal County, which was an unorganized county, and by legislative enactment was attached to Webb County for judicial purposes. There it was held that the place of the offense was improperly laid in Webb County; that it should have been laid in Encinal County, where it actually occurred. This view wastaken because it was not provided that the venue in unorganizedcounties could be laid, under article 245, Code of CriminalProcedure, in the county where the prosecution was carried on.That case has a direct application to the case at bar, as theact of the Legislature under which this prosecution was begundoes not provide that the indictment may allege that theoffense was committed in the county where the prosecution wascarried on." (Italics ours). In Gonzales v. State,76 Tex. Crim. 493, the offense of rape was prosecuted in Atascosa County, and the indictment alleged that it was committed in said county. The offense in fact was committed in Live Oak County. The holding in Mischer's case was followed. The Gonzales case was tried in 1915. In following the Mischer case the court apparently overlooked the fact that in the revision of the statutes in 1911 the offense of rape had been placed in Chapter 2 of Title 4, C. C. P., and was at the time of trial controlled by what is now Art. 210, of said Chapter, then being Art. 257.

The prosecution of offenses named in Chapter 2 of Title 4 may be regarded as exceptions to the rule announced in Chivarrio v. State, 15 Texas Cr. App., 330, and in the Mischer and Gonzales cases (supra), because they are controlled by Art. 210, C. C. P. We remain of the opinion that it should have been alleged in the indictment that the offense was committed in the county where it actually occurred, with additional averments, if such be necessary, to show jurisdiction in Travis County, the place of prosecution, in the absence of a provision similar to that found in Art. 210, C. C. P. It seems clear that the very enactment of said Article was a recognition that it was a departure from the ordinary rule of pleading as to venue.

The State's motion for rehearing is overruled.

Overruled.