Hamilton v. State

• Decision Date: 03 May 1899
• Citation: 51 S.W. 217
• Parties: HAMILTON v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 217

HAMILTON v. STATE.

Court of Criminal Appeals of Texas.

May 3, 1899.

Appeal from district court, Jackson county; Wells Thompson, Judge.

John Hamilton was convicted of rape, and he appeals. Reversed.

Fly & Hill, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 25 years; hence this appeal.

The record is in a remarkable condition. We have a bill of exceptions regarding the change of venue from Victoria to Jackson county. The indictment shows that it was presented in Victoria county. The record shows that it was tried in Jackson county. But we have none of the proceedings and no order of the court making the change of venue. No point, however, is made on this phase of the case.

A bill of exceptions shows that on the 25th of May, 1898, the cause was called for trial in Victoria county and continued. The order for said continuance was entered in the forenoon of said day. In the afternoon of the same day a written motion was made by the state to change the venue for the reason that the case had been twice tried in Victoria county, and there would be difficulty in obtaining a jury, and for the further reason that the continuance this day granted would necessitate a further delay of the trial until the next fall term. Appellant objected to this action of the court because it was then too late to obtain a trial at a term of the district court in Jackson county, which was then in session, that the attendance of the witnesses could not be procured in time to try said case, and for the further reason that the court had no occasion to change the venue, because there was a large number of jurors in Victoria county who knew nothing of the case, and offered to prove same by the sheriff and assessor of Victoria county. The court, however, overruled the objections, and ordered the venue changed to Jackson county. This bill is signed by Judge James C. Wilson, of the Twenty-Fourth judicial district, which includes Victoria county. As far as this bill is concerned, we see no error in the action of the court. As stated, we have not the order of the court changing the venue, nor have we the statement of facts on which the court may have acted, embodied in the bill of exceptions. This is required by article 621, Code Cr. Proc. As far as we are advised, the court may have made the change of venue of his own motion, ignoring or treating as merely persuasive the motion for that purpose made by the district attorney. Article 613, Code Cr. Proc., authorizes the court to make such change of his own motion whenever he shall be satisfied that a trial alike fair and impartial to the accused and to the state cannot, from any cause, be had in the county in which the case is pending. The fact, as stated in said bill, that a trial could not be had at the then term of the district court of Jackson county, furnished no reason for a refusal to change the venue. It appears, however, that the trial was had at that term of the court, and no application for continuance was made.

By a succeeding bill, appellant complains that the court erred in making the change of venue, because the case had been continued on the same day prior to the order changing the venue, and said order of continuance had not been set aside. This bill is also signed by James C. Wilson, judge of the Twenty-Fourth district court. It would appear to be a correct practice to take a bill of exceptions at the court where the order for the change was granted. Krebs v. State, 8 Tex. App. 1. But the bill should be so full as to show all the proceedings involved in the motion for change of venue. Here we have neither the order for change of venue, nor any of the prior orders of the district court of Victoria county. Of course, the court should, in regularity, have set aside the order continuing the case before he took up and ordered the change of venue. This was not done, so far as the record discloses. We are not, however, prepared to say but that the effect of the subsequent order changing the venue was to set aside the order for continuance, which had previously been made on the morning of the same day. Article 617, Code Cr. Proc., provides: "The application for change of venue may be heard and determined before either party has announced ready for trial; but in all cases before the change of venue is ordered all motions to set aside the indictment and all special pleas and exceptions which are to be determined by the judge, and which have been filed, shall be disposed of by the court, and if overruled the plea of not guilty entered." This article apprehends that the court may take action on the change of venue before either party has announced ready for trial, or it may take action after all preliminary motions have been overruled and the plea of not guilty entered. But it does not apprehend that the court should take up a motion for change of venue after the cause has been continued. A continuance of the case is a final disposition of the same for the term. The court has control of its orders during the term, and is authorized to set aside the continuance of a case previously made, and to try the case or make some other disposition thereof; and the action of the court in this regard was tantamount to setting aside the continuance previously granted for the purpose of acting on the motion for a change of venue.

Appellant excepted to the Honorable Wells Thompson trying said cause on the ground "that T. S. Reese, who had formerly been the judge of the district court for Jackson county, had resigned the office of district judge, and that prior to the last general election, which occurred on the 8th of November, 1898, the Honorable Wells Thompson had been appointed by the governor to fill the unexpired term of Judge Reese, as the term of Judge Reese expired on the 8th of November, 1898, when the general election was held, and there was no election for district judge at said election, and no appointment had been made since said last general election to fill the vacancy." To support the contention of appellant, we are referred to Royston v....