Frizzell v. State

• Decision Date: 20 June 1891
• Citation: 16 S.W. 751
• Parties: FRIZZELL v. STATE.
• Court: Texas Court of Appeals

16 S.W. 751

FRIZZELL v. STATE.

Court of Appeals of Texas.

June 20, 1891.

Appeal from district court, Taylor county.

Lockett & Bledsoe, for appellant. R. H. Harrison, for the State.

WHITE, P. J.

Appellant was indicted in the district court of Comanche county for the murder of his wife, A. A. Frizzell, in said county, on or about the 24th day of January, 1891. It appears that, within a very short time after the indictment was found, a trial was had in the Comanche county district court, and that the defendant was convicted at the February term, 1891, of said court. This conviction, on motion of the defendant, was set aside, and on the 26th of February the court of its own motion, and for the reason, "It appearing to the court that by reason of the great notoriety and excitement caused by this cause, and the consequent prejudices and opinions formed, that a new trial, alike fair and impartial to the accused and the state, cannot he had in this county, it is accordingly further ordered that the venue of this cause be, and the same is hereby, changed and transferred to Taylor county, Texas, and to the district court thereof; the same being situated in the 42d judicial district."

1. At the March term of the district court of Taylor county the defendant pleaded to the jurisdiction of the court, upon the ground that the venue was changed without his consent from Comanche county, and that the reason stated by the court for the change of venue was insufficient in law, but, if sufficient, then under the law the venue should have been changed to Eastland county in the forty-second district, because the court-house of said Eastland county was the nearest court-house to the said Comanche county; that Callahan county is the next nearest county-seat to Comanche county, and is also in and part of the forty-second judicial district, and that neither in Eastland nor Callahan counties was there any excitement or prejudice in connection with this case, and a trial, alike fair and impartial to both the defendant and the state, could be had in either of these counties; that the court-house in Taylor county is the furthest in the forty-second judicial district from the court-house in Comanche county; and the defendant prayed the court to hear evidence in these matters stated in his plea. This plea to the jurisdiction was overruled by the court, and the supposed error in the ruling is the first point made by defendant's counsel in their brief in this case. By article 576, Code Crim. Proc., the district judge is authorized, where he is satisfied that a fair and impartial trial cannot be had in the county where the case is pending, upon his own motion to change the venue to any county in his own or an adjoining district. See, also, Brown v. State, 6 Tex. App. 286; Cox v. State, 8 Tex. App. 254; Boyett v. State, 26 Tex. App. 689, 9 S. W. Rep. 275; McCoy v. State, 27 Tex. App. 415, 11 S. W. Rep. 454; Willson, Crim. St. § 2200. It is only where an application for a change of venue is made in behalf of the state or in behalf of the defendant that the venue is required to be changed to the nearest county to the county where the prosecution is pending. Code Crim. Proc. arts. 577-582. And the discretion conferred upon district judges by article 576 is not restricted by article 581. The action of the court in changing the venue upon its own motion will not be revised upon appeal, unless it be shown that the defendant has been materially prejudiced thereby. Bohannon v. State, 14 Tex. App. 271; Woodson v. State, 24 Tex. App. 153, 6 S. W. Rep. 184. The court did not err in overruling defendant's plea to the jurisdiction Where the venue has been changed upon motion of the court, the defendant is not prejudiced in his right to move to change the venue from the county to which the court has changed it, if he can show any of the statutory grounds provided for as reasons for the change of venue in the first instance. Thurmond v. State, 27 Tex. App. 347, 11 S. W. Rep. 451. In this case, after the defendant's plea to the jurisdiction was overruled, he did not interpose an application for a change of venue from Taylor county, and there is no reason shown by him why the venue should have been changed from said last-named county.

2. Defendant filed an application for a continuance, based upon the absence of several witnesses by whose testimony he mainly expected to prove facts and circumstances tending to establish the defense of insanity, which was the main defense relied upon in the case. In qualifying or explaining the bill of exception reserved to the overruling of this application for a continuance the trial judge states that it was in fact a second application for a continuance. The prosecution contested the application for a continuance on the ground of the want of diligence, and in our opinion sufficient diligence is not shown. The learned trial judge's explanation, moreover, shows that on the trial four of the witnesses named in the application appeared, three of whom testified, and the other was presented and tendered to the defendant, but was not put upon the stand by him as a witness. Most of the facts proposed to be proven by a majority of the absent witnesses were proven by witnesses who testified on the trial. We do not believe that with the additional testimony of the absent witnesses a more favorable verdict for the defendant would result, because it appears that all of the material facts connected with his plea of insanity have been fully developed by the evidence of the witnesses who testified. It is a well established rule that "it is only in a case where, from the evidence adduced upon the trial, we would be impressed with the conviction not merely that the defendant might probably have been prejudiced in his right by overruling his application for a continuance, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted," that reversal should be granted. Covey v. State, 23 Tex. App. 388, 5 S. W. Rep. 283; Browning v. State, 26 Tex. App. 432, 9 S. W. Rep. 770. It is not made to appear that the court erred in overruling the application for a continuance.

3. Def...