Cotton v. State
| Decision Date | 01 January 1870 |
| Citation | 32 Tex. 614 |
| Parties | LEROY COTTON v. THE STATE. |
| Court | Texas Supreme Court |
1. The right to a change of venue is not a constitutional right, such as the right to trial by jury. It is a mere legal right, and to be claimed only on the terms and under the qualifications prescribed in or reasonably deducible from the law.
2. The affidavit of a defendant, supported by the affidavits of two credible persons of the county, alleging the existence of one or both of the grounds for change of venue defined in art. 2994 of Pas. Dig. (viz.: great prejudice or influential combinations against the accused), will warrant the defendant to submit his application to the district court, but he does not thereby become entitled to a change of the venue.
3. By the same statute the district judge is made the sole and irresponsible arbiter of the truth or falsity, sufficiency or insufficiency of the causes thus alleged by the accused; and in exercising his judgment he is not circumscribed by a legal discretion which this court can supervise, nor is any method prescribed by which he shall enlighten his understanding or arrive at his conclusion on the application.
4. It is competent for the district judge, in deciding an application for a change of venue, to act upon his own knowledge of the truth or falsity of the alleged causes, or of the degree of credit due to the affidavits filed in support of it, so that, however regular the application, he may lawfully overrule it without any proof whatever, and his action cannot be revised by this court. Hence, it was not error in the district court to receive counter-affidavits against an application for a change of venue, nor to refuse to hear additional affidavits in support of it.
5. But it seems that if the district judge refused to hear and consider an application duly made for a change of venue, such refusal would be error and an abuse of his legal discretion, which this court could correct.
6. If the district court erroneously refuses a continuance, a bill of exceptions must be taken, or the error is waived; but this rule should not be held inflexible in a criminal case, and especially in a capital felony, if the record evinces a case of doubtful guilt.
7. A juror, summoned in a capital case and under examination as to his qualifications, stated “that he would be influenced by the testimony, but at present, from what he had heard, he thought the young men were guilty.” Being asked by the court, “Could he render an impartial verdict, and on the testimony alone?” he answered “I could;” and being further asked by the court, “Would the partial opinion at present held by him influence his verdict upon the testimony?” he answered “It would not.” The accused objected to the juror as incompetent, but the court held him competent, and the accused excepted to the ruling and challenged the juror peremptorily. Held, that the ruling was not error of which the accused could complain, unless it compelled him to accept an objectionable juror after exhausting all his peremptory challenges.
8. The court minutes of a trial for murder recited that the jury were “duly sworn ‘well and truly to try the issue between the state of Texas and the defendant, and a true verdict render in accordance with the law and the evidence.’ 'DDDD' Held, to be sufficient as showing that the jury were duly sworn, and the purpose for which they were sworn, but not to import a copy in hœc verba of the oath which was administered to them, and which need not be set out in the record.
APPEAL from the criminal court of Galveston. Tried below before the Hon. W. R. Fayle.
At the March term (1869), of the criminal court of Galveston county, Leroy Cotton, the appellant, and Henry Cotton, his brother, were jointly indicted for the murder of John B. Lockman, on the 11th day of January, A. D. 1869.
A severance was asked by the accused and allowed by the court, and the state elected to proceed first with the trial of the appellant, Leroy Cotton.
A special venire was ordered, returnable March 30, 1869. On this last day the defendants, Leroy and Henry Cotton, applied to the court for a change of the venue; but their application was overruled and they excepted. It appears by the transcript that the original motion for the change of venue was “cut from the papers,” and thus lost or destroyed, before the transcript for appeal was made out; but at the next term of the court, held in September, 1869, the appellant, then under sentence, moved for and obtained an order of court to substitute and embody in the transcript substantial copies of the original motion and affidavits so lost. This substituted motion is in the name of the appellant alone, as follows:
“Now comes Leroy Cotton, a severance having been granted, and moves the court to grant him a change of venue, and says: That immediately after the alleged killing of Major Lockman, the newspapers of the city of Galveston published detailed accounts of what purported to be the facts of the case, with severe strictures against the defendant, which accounts were exaggerated, partial and not the true facts in the case; that the newspaper accounts thus published so inflamed the public mind that a mob was about to take the defendant out of the custody of the sheriff, who had the prisoner confined in the jail of Galveston county. The danger from said mob was so great that the defendant, through his friends, applied to Col. Cram, the military commander of the post of Galveston, to protect him in the hands of the sheriff. That for these and other causes:
1. That there exists in the county of Galveston so great a prejudice that he can not obtain a fair and impartial trial.
2. That there is a dangerous combination against him, instigated by influential persons, by reason of which he can not expect a fair trial. Supported by the affidavit of defendant, and of Wm. M. Williams and John J. Kirwan, citizens and residents of Galveston county.
+--------------------------+
¦(Signed)¦LEROY COTTON, ¦
+--------+-----------------¦
¦ ¦WM. M. WILLIAMS, ¦
+--------+-----------------¦
¦ ¦JOHN J. KIRWAN.” ¦
+--------------------------+
(The jurat follows, certified by the clerk.)
The affidavits of the defendant and of J. W. Henderson, Esq., who, as counsel, drew the original motion, together with a certificate of certain of the counsel for the state, were filed with the foregoing substituted motion, deposing to its substantial conformity with the lost original.
Next in the transcript follows the order of the court substituting these papers and making them part of the record; after which the minutes proceed with a statement of what transpired on the submission of the original motion to the court as follows:
And next the transcript makes the further extract from the court minutes, to wit:
“ By Court.--Col. Cram and Sheriff Dirks were asked, first, if they were acquainted with the general feeling existing in the community, and the sentiments of the people of Galveston county, to which question they replied that ‘they were.’
Also, that Williams, one of the parties who signed the affidavit for a change of venue, answered, upon question asked, that he was the brother-in-law of the accused.
The witnesses introduced were for the purpose of enabling the court to determine as to the truth and sufficiency of the causes assigned, and whether there did or did not exist such state of prejudice in the minds of the citizens of Galveston county, that the accused could not receive a fair and impartial trial.
+------------------------------+
¦(Signed)¦W. R. FAYLE, Judge.” ¦
+------------------------------+
The foregoing are the facts shown in the transcript with reference to the motion for change of venue, which figures as a principal question in the opinion of this court.
The special venire was ordered on the 22d of March, 1869, and on the next day the defendant, on affidavits filed, asked for and obtained detachments for three persons who were alleged to be material witnesses for the defense, and to be then absent in certain other counties. The attachments were made returnable on the 31st of March, being the next day after the return day of the venire. But on the 31st of March, the panel being still incomplete, the defendant filed his affidavit for a continuance, alleging diligence in his efforts to obtain the attendance of witnesses for whom the attachments were ordered, and the continual absence of one of them, R. B. Ridgeley, by whom he expected to prove “that on the evening and day of the alleged killing, the deceased abused and outraged the defendant, ...
To continue reading
Request your trial
-
State ex rel. Ricco v. Biggs
...State, 124 Tex.Cr. 656, 65 S.W.2d 308, the court sustained the statute as against a challenge to its constitutionality. See, also, Cotton v. State, 32 Tex. 614. In the section of 22 C.J.S., Criminal Law, § 187, previously cited it is said: 'Subject to constitutional restrictions the right t......
-
Crocker v. Justices of Superior Court
... ... their birthright, and brought it with them, except such parts ... as were judged inapplicable to their new state and condition ... The common law, thus claimed, was the common law of their ... native country, as it was amended or altered by English ... 114, 116; Boldt v ... State, 72 Wis. 7, 11, 38 N.W. 177; Hanley v. State, 125 Wis ... 396, 400, 104 N.W. 57; State v. Howard, 31 Vt. 414; Cotton ... ...
-
Mason v. Pamplin
...the present controversy and the relief sought are not within the jurisdiction of this court." 43 S.W.2d 104, 105. See also: Cotton v. State, 32 Tex. 614, 637 (1870) decided by the Supreme Court of Texas, where it was observed, in the light of the Texas Constitution only, that change of venu......
-
Shumway v. State
... ... exhausted his peremptory challenges. Holt v. State, ... 9 Tex. Ct. App. 571; Loggins v. [82 Neb. 159] ... State, 12 Tex.App. 65, Blackwell v. State, ... 29 Tex. Ct. App. 194, 15 S.W. 597; Holland v. State, ... 31 Tex. Crim. 345, 20 S.W. 750; Cotton v. State, 32 ... Tex. 614. The fact that the defendants in a criminal case ... were obliged to challenge disqualified jurors peremptorily ... was held, in Carthaus v. State, 78 Wis. 560, 47 N.W ... 629, not to be prejudicial error. In that case it was said: ... "A fair and impartial jury was ... ...