Handy v. State , 139 Tex. Crim. 3 ( 1939 )

Appellant insists in his motion for rehearing that we were in error in not sustaining his contention that the trial court should have ordered a change of venue.

We are cited to a number of cases which are thought to sustain appellant's position, particularly Bond v. State,121 Tex. Crim. 269, 50 S.W.2d 813; Richardson v. State,126 Tex. Crim. 223, 70 S.W.2d 1003; Blackshear v. State,126 Tex. Crim. 417, 72 S.W.2d 601. It is difficult to find a case which is a controlling precedent upon the question of change of venue for the reason that each case turns upon the facts in that particular case, hence precedents are not very helpful save as they announce general principles which may be applicable in the case presently under consideration.

In Willis v. State, 128 Tex.Crim. R., 81 S.W.2d 693, this court said: "Nothing is better settled than that in determining whether the trial court abused his discretion in refusing to change venue each case must be decided upon its own facts. No two cases are alike. Many holdings of this court are reviewed and cited in the able briefs of both counsel for appellant, who are to be highly commended for their earnest effort in a cause wherein they were appointed by the court and served without pay as faithful officers of the court. We do not find any case enough like this on its facts to justify holding it a precedent."

To illustrate how the variant facts may impress the court in passing upon the question before us we refer to Richardson v. State, (supra). There the trial judge reserved his ruling until he heard the statements of the veniremen, and their evidence on voir dire examination was made a part of the record. Out of 81 prospective jurors examined 68 entertained the opinion that Bond was guilty, and a number of them had themselves expressed opinions about it. The trial judge in the present case reserved his ruling until the veniremen were examined. Ninety-nine prospective jurors were examined. Forty-five were excused because of opinions. Only two stated what their opinion was, and both stated that they believed appellant was innocent. The jury was secured from the remaining 54 veniremen, and each juror chosen said he had no "opinion or impression" as to the guilt or innocence of appellant.

In Bond's case (supra), he was a comparative stranger in the county, while deceased was generally and favorably known; had many kinspeople, both by blood and marriage, scattered all over the county. Two of the veniremen were excused because they were related to deceased, and after the trial it was discovered that four men who had sat on the jury were distantly related to deceased by marriage.

It is appellant's position here that the newspaper stories regarding the killing caused a prejudice to exist against appellant. Whether or not this was true became a question of fact on the issue joined between appellant and the State. It was our effort in the original opinion to make a fair condensed statement of the evidence pro and con on such issue.

The evidence before the trial court and before us makes necessary the application of the rule stated very clearly in Carlile v. State, 96 Tex.Crim. R., 255 S.W. 990, as follows: "The statute fixes the measure of the court's duty upon an application for a change of venue, namely, to grant the motion where, upon the uncontroverted motion or upon the evidence adduced, it is made to appear that there exists in the county 'so great a prejudice against (the appellant) that he cannot obtain a fair and impartial trial.' Code of Crim. Proc. art. 628. The burden is upon the appellant to prove the existence of such prejudice, and, where evidence is heard, the issue is to be determined by the trial court. The discretion is upon the trial court to weigh the evidence, and, if from it there arises two conflicting theories, the trial court has the discretion to adopt either. In the absence of the abuse of this discretion, the judgment will not be disturbed on appeal. If, however, the evidence is such that it leads to the conclusion that the bias, prejudice, or prejudgment of appellant or his case is such as renders it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application. Dobbs v. State, 51 Tex.Crim. R., 103 S.W. 918. Injury is shown when it is made evident under the procedure provided by law it is improbable that an impartial jury can be impaneled to determine the guilt of the accused, and a change of venue is denied. Barnes v. State, (Tex. Cr. App.)59 S.W. 883; Randle v. State, 34 Tex.Crim. R., 28 S.W. 953; Cox v. State, 90 Tex.Crim. R., 234 S.W. 72, and cases cited."

Other cases in which the same rule has been applied are Parker v. State, 91 Tex. Cr. 68, 238 S.W. 943; Walker v. State, 98 Tex.Crim. R., 267 S.W. 988; Davis v. State, 101 Tex. Crim. 352,275 S.W. 1029; Walker v. State, 124 Tex.Crim. R.,60 S.W.2d 455; Fulton v. State, 132 Tex.Crim. R., 103 S.W.2d 755. Because of the extreme penalty, and appellant's insistence that we erred in our original opinion the evidence on the issue of change of venue has again been most carefully examined, and we feel that this court would not be justified in holding that the learned trial judge abused his discretion in declining to change the venue under the evidence on that issue.

The motion for rehearing is overruled.