Burleson v. State, 18450.

• Decision Date: 14 October 1936
• Docket Number: No. 18450.,18450.
• Citation: 100 S.W.2d 1019
• Parties: BURLESON v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W.2d 1019

BURLESON v. STATE.

No. 18450.

Court of Criminal Appeals of Texas.

October 14, 1936.

State's Rehearing Denied January 27, 1937.

Commissioners' Decision.

Appeal from District Court, San Augustine County; F. P. Adams, Judge.

Jim Burleson was convicted for theft, and he appeals.

Reversed and remanded.

Adams & McAlister, of Nacogdoches, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of theft from the person alleged to have been committed so suddenly as not to allow time to make resistance, and his punishment was assessed at confinement in the state penitentiary for a term of three years.

Bill of exception No. 1 reflects the following occurrence: Appellant filed a motion for a change of venue supported by his affidavit and that of his mother and his wife as compurgators. It appears that this application for a change of venue was controverted by the state on the ground that the affiants cannot be deemed proper persons to make said affidavits because of their bias in favor of the defendant; that they were interested in the matter in controversy and on account of their relationship with the defendant, Jim Burleson, they could not be deemed to be in a position to make the affidavits; and on the further ground that their means of knowledge of the matter stated by them in their said affidavits is insufficient to justify the statements contained therein. Upon the presentation of the motion and the controverting affidavit the court inquired of the appellant's attorney if it were true that the compurgators were the mother and wife of the appellant, and upon receiving an affirmative answer, he overruled the application without hearing evidence — to which action of the court appellant excepted and brings the matter to this court for review. Article 562, C.C.P. 1925, specifies two grounds upon which an application for a change of venue may be based. Both of the grounds were set forth in the application for a change of venue.

The main question presented for review is whether or not the court had a right to assume as a matter of law in the absence of testimony that the mother and wife of the appellant were not credible persons within the meaning of the statute. In the case of Jones v. State, 58 Tex. Cr.R. 313, 125 S.W. 914, this court said: "A `credible person' contemplates a person competent to give evidence and worthy of belief, and the mere fact that a person's reputation for truth and veracity is attacked does not render him incompetent to make the affidavit [for information]." In the case of Anderson v. State, 56 Tex.Cr. R. 360, 120 S.W. 462, 466, the court said: "A credible witness is one who, being competent to give evidence, is worthy of belief." That the compurgators were competent witnesses in favor of the appellant seems to be beyond question. Whether or not they were worthy of belief should be determined from the entire testimony. If the court after hearing the testimony had determined that their means of knowledge was not sufficient to support the statements made in their affidavits or that they were not worthy of belief, an entirely different question would have been presented and the appellant might not have had any grounds of complaint. But in the instant case the court without even interrogating the compurgators or without hearing any evidence whatever overruled the application for a change of venue on the ground no doubt that they were not credible persons within the meaning of article 562, C.C.P. 1925. The fact that the compurgators were the mother and wife of the appellant did not within itself establish that they were not credible persons. It may be that if the court had heard all of the testimony, he may have concluded that the appellant was not entitled to a change of venue and his judgment thereon would not have been subject to review unless it was made to appear that he abused his discretion. But to deny him the opportunity of presenting his testimony in support of his application was a denial of a legal right to which he was entitled. See Smith v. State, 21 Tex. App. 277, 17 S.W. 471.

Having reached the conclusion that the court erred in overruling the application for a change of venue without hearing any evidence in support thereof was error, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, Judge.

The application for change of venue, sworn to by appellant, reads as follows (omitting the formal parts):

"* * * There exists in this county so great a prejudice against him that he cannot obtain and secure a fair and impartial trial of this cause in said county, and as well as such great prejudice existing in said county against this defendant, there is another reason in that there is a dangerous combination against him instigated by influential persons by reason of which he cannot expect to obtain a fair and impartial trial, as was contemplated by the Statutes and the Constitution of the State."

The affidavit of the compurgators, Mrs. Mattie Burleson and Mrs. Jim Burleson, omitting the formal parts, is as follows:

"* * * Having this day been duly informed of the contents of the application for change of venue filed by Jim Burleson, the defendant in the above entitled and numbered cause, and being duly sworn, upon our oaths do depose and say that the facts therein stated are true; that we know of the existence of such prejudice against the defendant in this San Augustine County, Texas and that it exists to such an extent throughout this county that we do not believe...