Pickett v. State , 148 Tex. Crim. 577 ( 1945 )

In his motion for rehearing and in his argument and brief in support of the motion appellant stresses two points which he urges were erroneously disposed of in our original opinion. The first is that the trial court erred in changing the venue to Smith County instead of Camp County as requested by appellant. This question was treated rather at length in our original opinion, but we have again examined the facts brought forward relating to the issue. Manifestly it would extend this opinion to unreasonable length to recite the evidence pro and con. We must state only our conclusion after reviewing the evidence, such conclusion being that the trial court can not be held to have committed error in sending the case to Smith County for trial, and that his reasons for not sending it to Camp County find support in the testimony.

The second point urged by appellant in his motion for rehearing is that his bills of exception three, four, five and ten exhibit error for which the judgment should be reversed. The subject of said bills is correctly and sufficiently stated in our original opinion without detailed repetition here. Supporting his contention that the said bills present reversible error appellant relies on Askew v. State,59 Tex. Crim. 152, 127 S.W. 1037; Funk v. State, 84 Tex.Crim. R.,208 S.W. 509; Hardin v. State, 55 Tex.Crim. R.,117 S.W. 974; Clifton v. State, 46 Tex.Crim. R., 79 S.W. 824; Parker v. State, 86 Tex.Crim. R., 216 S.W. 178; Schultz v. State, 97 Tex Cr. R. 473, 262 S.W. 493; Mathews v. State, 109 Tex. Crim. 560,5 S.W.2d 995; Johnson v. State, 119 Tex.Crim. R.,45 S.W.2d 989. In the cases relied upon as supporting the conclusion announced in our original opinion herein there is manifest a modifying of the holding in some of the cases relied upon by appellant to the effect that the mere proof that unexecuted process had been issued for a State's witness carried with it an unsupported implication that accused was responsible for the witness' absence. This broad inference seems illogical. The facts in each particular case and the manner in which the question arose should throw light on the subject. Such was intimated in the Johnson case (supra). There accused was a deputy sheriff and it was said in the opinion:

"If the state had proved that process for the witnesses had been issued, it would have perhaps carried an implication that appellant might have been responsible for getting the witnesses out of the way, as he is shown to have been a deputy sheriff at the time of the alleged offense, and up to the time of the trial.

The thought in the mind of the writer was that accused being an officer charged with the execution of process, proof that process had not been executed might carry the implication that accused was in some way responsible for the absence of the witness.

In the present case the district attorney asked one eye witness if he knew where an absent eye witness then was, to which inquiry the witness being examined answered that the absent witness was in Louisiana the last time he heard from him. We fail to discover any ground supporting the contention that such question or answer carried an implication that appellant was responsible for the witness being in Louisiana. At this point appellant's attorney asked the district attorney if the witness had been summoned to which direct inquiry the district attorney replied that they — the State — had only tried to summons him. Appellant's attorney then stated that he did not want any intimation that appellant or his attorney was responsible for the witness' absence. We think no such intimation could be drawn from what had occurred. The State later in the trial introduced in evidence over appellant's objection application for process, the process itself and the sheriff's return stating that the witness had not been summoned because he was in Louisiana. The jury received no more information than they already had from the district attorney's reply to appellant's attorney's question, — that the State had tried to summons the witness. The return on the process may have been hearsay, but we think not of that harmful character under all the circumstances demanding a reversal. Under the circumstances present the authorities cited in our original opinion are thought to support our conclusion that reversible error has not been shown.

The motion for rehearing is overruled.