Coffman v. State

• Decision Date: 18 March 1914
• Docket Number: (No. 1920.)
• Citation: 165 S.W. 939
• Parties: COFFMAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 939

165 S.W. 939 COFFMAN
v.
STATE. (No. 1920.) Court of Criminal Appeals of Texas. March 18, 1914. Rehearing Denied April 15, 1914.

Page 940

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Louie Coffman was convicted of murder in the first degree, and he appeals. Affirmed.

G. R. Smith, R. C. Merritt, and F. E. Wilcox, all of McKinney, for appellant. Rice Maxey, of Sherman, W. R. Abernathy, of McKinney, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

On this trial appellant was again convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. This is the second appeal. The decision on the first is reported in 62 Tex. Cr. R. 88, 136 S. W. 779. His punishment on the first was assessed at death. The trial this time occurred in December, 1911. The record reached and was filed in this court May 14, 1912. It is to be deplored that the case has been held here so long without a decision thereof.

From the other decision the general character of the case can be understood. It is unnecessary here to give any extended statement of the evidence. Wherever it may be necessary in deciding any question raised herein such statement will be made as is necessary.

In the opinion on the former appeal we held, in effect, that the lower court erred in not granting a change of venue, and ordered the trial court to change the venue. We did not intend thereby to direct or require that the venue should be changed to any particular county, nor to take away the discretion of the lower court on that question. The law expressly confides a discretion in such matters in the trial judge, when he changes the venue on his own motion. C. C. P. art. 626. This court has no right or authority to take that discretion from a trial judge. While, as held uniformly, it is a sound judicial discretion, not an arbitrary personal one, yet this court cannot substitute its discretion for that of the trial judge, nor take it away from the trial judge. When our Codes were first adopted, the court, of his own motion, was not authorized to change the venue. This power was first given by the act of 1876, now article 626, C. C. P. Before said authority and discretion was given to the trial judge, our statute (article 631, C. C. P.) in effect required that the change should be made to some adjoining county, the courthouse of which was nearest to the courthouse of the county ordering such change. At the time said original law was enacted, we judicially know that there were no railroads in the country affording access from one county seat to another, but universally, or practically so, the common dirt public roads were used and had to be used. No such conditions now exist, and especially in the territory where this crime is alleged to have been committed and the case tried. The object of the old law, requiring the change to the nearest county seat, was because of convenience to the parties and the witnesses, and to save expense in the trial. The gist of an accused's right to a change is that he shall not be tried in a county where, from prejudice or combination against him, he cannot get a fair and impartial trial, but that he shall be tried in some county where he can get such fair and impartial trial, and not merely that the change shall be made to the county seat of the nearest county.

This record shows, and the trial judge found and held, that the courthouse of Rockwall county was 29 or 30 miles distant on a direct line from the courthouse at McKinney in Collin county; that there was no direct

Page 941

railroad connection between the two courthouses of said counties; that to reach the courthouse of Rockwall from McKinney by means of railway, the distance was at least 55 miles, and perhaps farther; that while the courthouse at Sherman in Grayson county, by a direct line, is about 3 miles farther than the courthouse in Rockwall, it can be reached by railway and interurban conveyance at a distance of some 22 to 25 miles nearer. The evidence on the trial of this question before the trial judge further showed, in effect, that where the place of the alleged homicide occurred was in the northern part of Collin county. We know judicially that practically the whole of the south line of Grayson is the north line of Collin, and that Rockwall is on the extreme southeast corner of Collin. Appellant lived, and most, if not all of the witnesses must therefore have lived, much nearer the courthouse of Grayson than that of Rockwall. The evidence further shows that there was no reason why the change should not be made to Grayson, for there was no prejudice against appellant or his case in Grayson that would in the least deprive him of a fair and impartial trial therein. There is not an intimation in this record, so far as any prejudice against him or his case was concerned, that he did not have a fair and impartial trial in Grayson county. In this connection we will quote what was said by this court in Bohannon v. State, 14 Tex. App. 302, as follows: "We are of the opinion, and so hold, in accordance with the former decisions of this court, that under article 576 (626) of the Code of Criminal Procedure, which we have quoted, the judge had the authority, of his own motion, to send this case for trial to Austin county. He was clothed with this discretion by the express and unqualified words of the law, and this law was enacted under the express sanction of the Constitution. Const. art. 3, § 45. It is true that this discretion is a judicial, and not a personal, one (Walker v. State, 42 Tex. 360; Dupree v. State, 2 Tex. App. 613), yet, it being a discretion created and confided by the law, it will not be revised by this court in the absence of any showing that it has been abused to the prejudice of the defendant. Such has been the uniform practice of this court, established by numerous decisions, and from which we see no reason to depart. Noland v. State, 3 Tex. App. 598; Johnson v. State, 4 Tex. App. 268; Labbaite v. State, 6 Tex. App. 257; Daugherty v. State, 7 Tex. App. 480; Cox v. State, 8 Tex. App. 254 [34 Am. Rep. 746]; Myers v. State, 8 Tex. App. 321; Grissom v. State, 8 Tex. App. 386; Webb v. State, 9 Tex. App. 490. It has been ably argued by counsel that it is dangerous to the liberties and rights of the citizen to confide to its district judges such unrestricted power as is conferred by the broad and unqualified language of article 576, above quoted, and that it should be limited by the provisions of article 581, following it. We do not regard article 581 as being restrictive of the powers conferred by article 576, and whether or not the power complained of is a dangerous one to be vested in district judges is not a question for this tribunal to determine. We will say, however, that since the enactment of article 576 (626), no case has come under the observation of this court in which the discretion conferred had been, in our opinion, abused. And in the case we are now considering we fail to discover any abuse of this discretion, and there is no pretense, or at least no effort is made to make it appear, that the defendant has in any respect been injured in his rights, or prejudiced, by the action of the court in sending the case to Austin county, instead of to Wharton county, for trial." Again, Judge White, in section 675 of his Annotated Procedure, under article 618, C. C. P., requiring the change to be made to the nearest county seat of the adjoining county, correctly says: "It is only where the change of venue is granted upon application either of the state or the defendant that the venue is required to be changed to the nearest county. The rule does not apply where the change is made by the judge of his own motion, because he is expressly authorized, by article 613 (626), to send it to any county in the same, or an adjoining district. Frizzell v. State, 30 Tex. App. 42 [16 S. W. 751]. * * * And where the defendant made application for change on account of prejudice and influential combinations against him, and the court granted the application, but, over defendant's objection, instead of sending it to the nearest courthouse, sent it to another county, assigning as his reason that a fair and impartial trial could not be had in the adjoining county with the nearest courthouse, held, that the judge had authority to make such change of venue, the action being tantamount to a change made as of his own motion. Bohannon v. State, 14 Tex. App. 271; Woodson v. State, 24 Tex. App. 153 [6 S. W. 184]; Brown v. State, 6 Tex. App. 286; Preston v. State, 4 Tex. App. 186; Rothschild v. State, 7 Tex. App. 519; Cox v. State, 8 Tex. App. 254 [34 Am. Rep. 746]; Mondragon v. State, 33 Tex. 480." (Italics above ours.)

When appellant presented his motion to change the venue, under the previous decision of this court, claiming it should be made to Rockwall, the court overruled the motion. Then, on his own motion, he changed the venue to Grayson county. The case thereupon was sent to Grayson. When there called for trial, at which this trial occurred, appellant made a motion to have the case transferred back to Collin, or, in effect, transferred to Rockwall, claiming that the court in Grayson had no jurisdiction. The court overruled this. None of these matters present any error. The venue was properly changed to and the case tried in Grayson.

Judge White, in his Annotated Procedure,

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§ 813, subd. 5, p. 532, correctly states: "There is no prescribed formula for a charge on circumstantial evidence. Loggins v. State, 8 Tex. App. 434; Hubby v. State, 8 Tex. App. 597. If the ideas conveyed are correct, and so expressed as to be understood by the jury, the charge is sufficient. Chitister v. State, 33 Tex. Cr. R. 635 [28 S. W. 683]; Ray v. State, 13 Tex. App. 51; Taylor v. State, 9 Tex. App. 100; Rye v. State, 8 Tex. App. 153; Simms v. State, 8 Tex. App. 230. The charge in general use in this...