Baker v. State , 220 S.W. 326 ( 1920 )

MORROW, J.

The appeal' is from conviction of robbery and punishment fixed at five years’ confinement in the penitentiary.

Hie court of its own motion changed the venue from Eastland to Taylor county. In the order brought up in the record changing the venue it is recited that the case is a capital one, requiring a speedy trial, and, “in view of the crowded condition of the docket of this court, and the nearing of the end of the term, it is transferred to Taylor county.” No objection at the time was made, either to the fact that the venue was changed, or to the manner, or to the form of order entered, and no question was raised at the time of the trial in Taylor county touching the authority of that court to try the case. On motion for new trial the verdict was challenged on the ground that the reason stated in the order changing the venut is insufficient to support it. Const, art. 3, § 45, vests the power to change the venue in the courts, “to be exercised in such manner as shall be provided by law,” and “the Legislature shall pass laws for that purpose.” Article 626 of the statute (Vernon’s Ann. Code Cr. Proc. 1916) is as follows:

“Whenever in any case of felony the district .judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the state, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue.”

And article 634 contains the following:

“The order of the judge granting or refusing a change of venue .shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made.”

The appellant insists that the order entered discloses an absence of authority to change the venue, and the court’s action is therefore reviewable without bill of exceptions. This implies a claim that there was a want of power to enact article 634, because, granting the existence of such power, the compliance with the article is a condition precedent to review on appeal of an order changing the venue. We see no reason why the Legislature would not have the power to make this a condition to the right of appeal. In article 5, § 5, the Court of Criminal Appeals is given appellate jurisdiction “under such regulations as may be prescribed by law.” In pursuance of this and perhaps other provisions of the Constitution, the Legislature has made numerous regulations relating to appeals, notably article 915, O. C. P., which requires as a condition precedent the entry of notice of appeal. Construing this statute, the court has uniformly disclaimed jurisdiction where there was a failure to comply with it. Lawrence v. State, 14 Tex. 432; Thomas v. State, 56 Tex. Cr. R. 246, 119 S. W. 846; and other cases collated in Vernon’s Texas Criminal Statute; Texas Criminal Statute, vol. 2, p. 877. The efficacy of article 634, supra, in preventing a review on appeal of the order of the trial court granting a change in venue has often been recognized. Bowden v. State, 12 Tex. App. 246, and other cases in Vernon’s Texas Criminal Statute, vol. 2, p. 342.

The court having power granted by the Constitution to change the venue, its failure to observe the legislative regulations requiring that the reason for the change be embraced in the order would not vitiate the order, in the absence of an abuse of discretion, which, to receive attention on appeal, would have to appear in some authentic form recognized by law, so that this court would know that there was an abuse of discretion. In the absence of some authentic information to the contrary, the presumption that the court did not transcend its authority obtains. Possibly, if it affirmatively appeared from the order that the trial judge changed the venue without believing that a fair and impartial trial could not be had in the county, the matter might be reviewed on appeal without a bill of exceptions. This, however, is not the state of the record, and the question is one we are not called upon to decide. We are inclined to the belief, however, that even under such circumstances, by reason of article 634, supra, this court would not have jurisdiction to review the matter, unless it appeared at least that the appellant excepted to the order in the court rendering it. This for the reason that, unless the record showed that the change of venue was made without his consent, the presumption that he acquiesced in it would prevail. On the effect of such acquiescence, the views expressed by the writer and authorities cited in the opinion of Taylor v. State, 81 Tex. Cr. R. 358, 197 S. W. 201, are pertinent. The conclusion there expressed is stated as follows:

“The Constitution having fixed no venue for the trial of felonies, and having expressly vested the power to change the venue in the courts, and specifically declares that the district courts have jurisdiction to try all felonies, and the district court of Williamson county having ordered this cause transferred to the district court in Bexar county, and the appellant having made no objection either to the transfer of the cause or the trial of it, I do not think that the district court of Bexar county was without jurisdiction of the subject-matter so as to render its judgment void. I do not, therefore, believe that the assignment raising this question should be sustained.”

This view is in accord with Harrison v. State, 3 Tex. App. 558, to which appellant refers us. In that case there were exceptions to the order transferring the case from Lavaca county, as well as to the jurisdiction in Colorado county, where it was removed. The exceptions, however, were not sufficiently specific, and the court said:

“Again, the judgment of the district court of Lavaca county, removing the cause to Colorado county, being the judgment of a court of competent jurisdiction, could not be collaterally attacked in the district court of Colorado county, for irregularity, or as having been improperly granted, either on a motion to set aside, or by demurrer, or plea to the jurisdiction of the court. Wheeler v. State, 42 Ga. 306. The plea to the jurisdiction was properly overruled.”

The cases to which appellant adverts in his carefully prepared brief are those in which the statutes are construed requiring that certain things be done as a predicate for review, or as a condition precedent to jurisdiction, an element which is not found in the article of the statute which requires the trial judge to note in his order his reasons for change of venue. In this class is article 2998, Paschal’s Digest, which provided that the change of venue should be to the nearest courthouse, unless certain things should be made to appear in the application. See Harrison v. State, 3 Tex. App. 561, in which the ruling was that unless the application showed such exceptions and a bill of exceptions was presented, the presumption in favor of the correctness of the court’s ruling would prevail on appeal.

The statutes requiring that in eases transferred from the district to the county court, order transferring shall appear in the record, and those requiring that the appointment and qualification of a special judge shall appear are provisions making certain prerequisites to the jurisdiction of the court trying the case. See Cohn v. Saenz (Civ. App.) 194 S. W. 685; Summerlin v. State, 153 S. W. 890; Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 370.

As we understand the rule, it is essential to the overturning of the order of the trial judge granting or refusing a change of venue that it be made to appear on appeal that there has been an abuse of discretion to the prejudice of the appellant. Bohannon v. State, 14 Tex. App. 271; Frizzell v. State, 30 Tex. App. 53, 16 S. W. 751; Tubb v. State, 55 Tex. Cr. R. 617, 117 S. W. 858.

The record failing to disclose a compliance with this rule, it is the duty of this court to deny the relief sought, and direct the affirmance of the judgment, which is ordered.