Barnett v. State

• Decision Date: 31 March 1915
• Docket Number: (No. 3481.)
• Parties: BARNETT v. STATE.
• Court: Texas Court of Criminal Appeals

176 S.W. 580

BARNETT v. STATE.

(No. 3481.)

Court of Criminal Appeals of Texas.

March 31, 1915.

On Motion for Rehearing, May 12, 1915.

Dissenting Opinion May 20, 1915.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hunt County; Wm. Pierson, Judge.

R. P. Barnett was convicted of murder, and he appeals. Affirmed.

Sam D. Stinson and Crosby, Hamilton & Harrell, all of Greenville, for appellant. C. C. McDonald, Asst. Atty. Gen. (Clark & Leddy, of Greenville, of counsel), for the State.

PRENDERGAST, P. J.

Appellant was indicted, tried, and convicted for the murder of Harrison Choat, alleged to have been committed on June 26, 1914. The indictment was preferred July 9, 1914. The indictment is in the approved form, and follows the statute. Appellant made a motion to quash it on many grounds. In submitting the case he did not urge the insufficiency of the indictment, and in his brief he does not argue the question or cite any authority. We deem it unnecessary to state the various objections. The court did not err in overruling his motion. The jury fixed his penalty at 25 years in the penitentiary.

The killing occurred on June 26, 1914. Appellant was arrested and placed in jail at once. There are two district courts for Hunt county — one, the Eighth, of which Judge Pierson is presiding judge, the other, the Sixty-Second, of which Judge Dehoney is the presiding judge. The Eighth district court was not in session, the Sixty-Second was. There was no grand jury then in session. On June 30th Judge Dehoney entered the proper order for the summons of a grand jury to convene on July 2d. On the latter date he duly organized the grand jury. They investigated the case, and one week later, on July 9th, preferred the indictment herein. On July 10th the court entered an order to have properly summoned 150 persons as special veniremen to try the case and set the case for trial for July 20th. On the latter date, appellant made a motion for a continuance, which was granted. Thereupon Judge Dehoney transferred the case from the Sixty-Second to the Eighth district. Soon thereafter appellant sued out a habeas corpus for bail, before Judge Pierson, who, after hearing the evidence, denied bail. Appellant appealed, and on October 14, 1914, this court held he was entitled to bail, and fixed his bond at $7,500. Ex parte Barnett, 169 S. W. 1165. He gave bond and was at liberty thereunder until this trial, which occurred in November, 1914; the verdict being rendered November 20th.

1. At the proper time before the trial appellant made a motion to change the venue, based on both statutory grounds. C. C. P. art. 628. His affidavit therefor was supported by the affidavit of a large number of others. The affidavits were very brief, but follow the statute, and were to the effect that there existed in Hunt county so great a prejudice against defendant that he cannot obtain a fair and impartial trial in said county, and that there is a dangerous combination against him, instituted by influential persons, by reason of which he cannot expect a fair trial. No fact or facts are given upon which they predicate their affidavits. The state controverted appellant's application and affidavits. This controverting affidavit was signed and sworn to by the district attorney, the county attorney, Mr. Leddy, who was specially employed to prosecute, and three other citizens. They specifically denied each ground of appellant's motion. In addition, they swore that the said compurgators of defendant have not sufficient knowledge and acquaintance with the people throughout said county with reference to the matters contained in their said affidavits, and have not sufficient information with reference to the matters in said motion, as to justify their statement that prejudice exists in said county against defendant, or that a dangerous combination of influential persons exist therein that would prevent him from obtaining a fair and impartial trial in said county; that each and all of said compurgators were wholly unacquainted with the feelings and conditions of the sentiment in said county in relation to this case, and that none of them have been over Hunt county sufficiently to form a correct idea with reference thereto, and are mistaken with reference to all the matters set up and contained in their said affidavits; that said county was some 40 miles square; that there were more than 6,000 qualified jurors therein, a large majority of whom knew nothing with reference to the facts of the case and have no prejudice whatever against defendant; that the scene of the homicide was in the extreme southeast corner of the county; that the remaining portions were remote therefrom, were thickly settled with qualified jurors, and that the communication with said portion of the county with other portions were not frequent; that a large majority of the citizens of said county had no actual knowledge of the facts and the only information a large number of the jurors had in regard to the case was based upon rumor or hearsay, and that there are hundreds of qualified jurors who have no opinion whatever as to the guilt or innocence of defendant; that said case created no great excitement in the county outside of the immediate community in which the homicide occurred. The statute (article 628, C. C. P.) prescribes that a change of venue may be granted on the written application of the defendant, supported by his own and the affidavits of at least two credible persons, residents of the county, for either of the following causes, "The truth and sufficiency of which the court shall determine": (1) That there exists in the county so great a prejudice against him that he cannot obtain a fair and impartial trial; (2) that there is a dangerous combination against him, instigated by influential persons, by reason of which he cannot expect a fair trial. Article 633 prescribes that the credibility of the persons making affidavit for change of venue "or their means of knowledge," may be attacked by the affidavit of a credible person, and the issue thus formed shall be tried and determined by the judge and the application granted or refused as the law and the facts shall warrant. We think it clear that the controverting affidavit of the district attorney, county attorney, and others above stated did attack the means of knowledge of appellant and his compurgators, and unquestionably raised the issue which the statute says "shall be tried and determined by the judge," so that appellant's contention that the issue was not properly raised so as to require him to introduce evidence is not well taken. Lemmons v. State, 59 Tex. Cr. R. 299.

2. The court thereupon heard the evidence on said motion for change of venue. A large number of witnesses testified on both sides and, as is usually the case, the testimony of some would support appellant's contention, while the testimony of others would contradict it. There is a statement of facts in the bill of all this evidence. It is very voluminous. We have read and considered it all. We see no necessity for copying it, or stating it to any extent. Mr. Branch, in his Criminal Law, § 201, states the correct rule, and cites several cases so holding, thus:

"Unless it is clear that the trial court has abused his judicial discretion, his action in refusing a change of venue will not require a reversal. Tubb v. State, 55 Tex. Cr. R. 617, 117 S. W. 858; Bohannon v. State, 14 Tex. App. 302; Cox v. State, 8 Tex. App. 283, 34 Am. Rep. 746; Grissom v. State, 8 Tex. App. 396; Clampitt v. State, 9 Tex. App. 27; Martin v. State, 21 Tex. App. 10, 17 S. W. 430; Magee v. State, 14 Tex. App. 376; Dupree v. State, 2 Tex. App. 613; Noland v. State, 3 Tex. App. 598; Grissom v. State, 4 Tex. App. 383."

As said by this court, through Judge Ramsey, in the Tubb Case, supra:

"Of necessity in respect to a question of this kind much ought to be left to the discretion and sound judgment of the court trying the case, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue, unless it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise terms above stated by Judge Hurt in the case of Gaines v. State, 37 S. W. 331" (citing some of the cases cited by Mr. Branch above, and others).

The trial judge, in approving the bill of exceptions, containing all the evidence heard on the motion for change of venue, did so with the following explanation:

"In this case a venire of 150 men was summoned to try this case. But 85 members of said venire were examined. Out of this number 2 were discharged on account of their physical condition, and 15 disqualified themselves by stating that they had conscientious scruples in regard to the infliction of death as a punishment for crime, making only 68 veniremen whose qualifications were tested in order to secure a jury in this case. Out of this number 26 were challenged and excused by the court for cause. After the state and the defendant had exhausted their peremptory challenges the next juror, J. M. McCombs, the last juror chosen, was not challenged for cause, said juror stating that he had formed no opinion whatever as to the guilt or innocence of the defendant. Every juror who stated that he had any opinion whatever as to the guilt or innocence of the defendant was execused by the court. Therefore not a single objectionable juror was forced upon the defendant. Of the jury selected to try this case but one member lives south of a line drawn from the east line of Hunt county to the west line, passing through Greenville, the killing having occurred in the extreme southeast portion of the county, and this juror lived near Quinlan in a different justice precinct from where the homicide occurred and stated upon his examination that he had not heard the facts of the case discussed, and had no opinion whatever as to the guilt...