Harris v. State
| Decision Date | 22 October 1913 |
| Citation | 160 S.W. 447 |
| Parties | HARRIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Wheeler County; L. C. Barrett, Special Judge.
Isaac Harris was convicted of hog theft, and appealed. Reversed and remanded.
Willis & Willis, of Canadian, and J. C. Dial, of Miami, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
Appellant was indicted in Roberts county for the theft of a hog. The case was transferred on change of venue to Wheeler county, where this conviction was had.
Appellant moved to dismiss his case from the docket in Wheeler county for want of jurisdiction, alleging as reasons that the indictment was originally returned in the district court of Roberts county, which court had jurisdiction, and that no transcript appears on file in Wheeler county district court of all the orders made in that district court as required by the statute; that among the papers of the case there appeared a bond executed by defendant and sureties for his appearance before the district court of Roberts county, as required by the statute; that since making that bond appellant has not been surrendered to the custody of the sheriff of Roberts county but has remained out on said bond, at large; that he has never entered into any recognizance to appear in the district court of Wheeler county, and no order was ever entered in the district court of Roberts county ordering the defendant to be removed from Roberts county and delivered into the custody of the sheriff of Wheeler county, and defendant was never so delivered into the custody of the sheriff of Wheeler county. This was in substance the motion. The district attorney agreed and admitted in open court that the defendant had never been recognized to make his appearance before the district court of Wheeler county, and that he had never been remanded or delivered into the custody of the sheriff of Wheeler county by the district court of Roberts county; that there appeared on file in the papers of said cause a bond duly executed by the defendant and his sureties requiring him to appear before the district court of Roberts county as required by law; that since the making of said bond defendant had never been surrendered to the sheriff of Roberts county but has remained out on said bond; that no order was ever made by the district court of Roberts county fixing any recognizance or ordering the defendant to be removed from Roberts county and delivered to the custody of the sheriff of Wheeler county, and appellant was ever so delivered into the custody of the sheriff of Wheeler county. Whereupon the court overruled said motion and required the defendant to stand trial in the district court of Wheeler county, to which action he reserved exceptions, etc.
The district judge who tried the case approved this bill of exceptions in substance with the following qualification: "On the trial of the cause and on the trial of the motion, the clerk of the district court testified that there had been on file among the papers of the cause a transcript of all the orders from the district court of Roberts county in said cause, and that among the same and in the same was an order changing the venue from Roberts county to Wheeler county, but that said transcript had been mislaid, and it was then agreed among the attorneys for both state and the defendant that they send to Roberts county where this indictment was first returned, and where the trial was had the first time in the cause, and get the order, or a certified copy of it, changing the venue from Roberts county to Wheeler county, and further agreed that there should be a substitute for the order changing the venue, and the attorneys for both the state and the defendant agreed that there was an order entered changing the venue to Wheeler county before the case was first tried in Wheeler county and when the papers were first brought, and the court finds that, when the papers were first sent from Wheeler county, a transcript of all the orders on the docket in the cause in Roberts county regularly certified to, including the order changing the venue to Wheeler county, was sent to said Wheeler county, and that the venue was regularly changed, with the exception of the defendants below named in the recognizance, and the court further finds on the testimony of the attorneys in the cause that it was agreed between the defendants after the court in Roberts county had decided to change the cause to Wheeler county; and the court further finds from the testimony introduced on the trial of said cause and this motion that there had been two or more continuances in said cause after the venue had been changed to Wheeler county, and that the cause had been once tried in Wheeler county after said change of venue, and no objection had been made to the jurisdiction of the court until this cause came up for trial at this term; and the court finds that the venue was regularly changed from Roberts county to Wheeler county, with the exception that the defendant was neither ordered into the custody of the sheriff of Wheeler county nor was he required to enter into a recognizance by said order changing the venue, which order as a part of the record is hereto referred to in the transcript and made a part hereof, and that the venue notwithstanding said defects was changed to Wheeler county, and that the defendant by voluntarily appearing and submitting himself to the jurisdiction of Wheeler county, and being tried once before this term in Wheeler county, giving bond, etc., and entering into a trial in Wheeler county at a former term without any objection to the order of changing the venue, before the present term of this court had waived the defects in the order changing the venue, and that therefore this court, under the circumstances, had jurisdiction."
The statute (article 637, Revised Code of Criminal Procedure) provides that, when a change of venue is ordered and defendant is on bail, he shall be required to enter into recognizance forthwith conditioned for his appearance before the proper court at the next succeeding term thereof, or, if the court of the county to which the cause is taken be then in session, he shall be recognized to appear before said court on a day fixed and from day to day and term to term thereafter until discharged. Article 638 provides that if defendant fails to give recognizance he shall be placed in custody and kept by the sheriff to be disposed of as provided in articles 639 and 640. These relate only to the defendant when he is in custody. Appellant was not in custody in Roberts county but was on bond, and the facts show, as stated in the bill of exceptions above quoted as well as in the qualification of the trial judge, that appellant, as a matter of fact, did not enter into recognizance in Roberts county when the change of venue was ordered to Wheeler county. The statute requires this to be done; and it would seem by its terms Wheeler county could not obtain jurisdiction of appellant until the law had been complied with. We have been unable to find but one case construing this statute, and this is in State v. Butler, 38 Tex. 560. That court sustains the contention of appellant. Among other things this language is found in that opinion: "An order transferring a criminal case to another county does not transfer the jurisdiction, unless the defendant be recognized to appear before the court to which the venue is * * * changed." The judge seems to have arrived at the conclusion that, because appellant had at a prior term of the court appeared in Wheeler county, therefore he had waived the failure of the court in Roberts county to put him under recognizance. Under the statute the learned judge is in error. The statute is emphatic that the party must either enter into a recognizance or go to the custody of the sheriff of the county from which the change of venue is had, and until this has been done the county to which the change of venue is had does not acquire jurisdiction. This might be sufficient to dispose of the case, so far as this appeal is concerned, but, in view of the fact that the proper change of venue may be had, there are some questions that we will notice.
At a prior trial of this case appellant's father, C. C. Harris, testified to very material facts. He was not in attendance at the trial which resulted in this conviction. The reason for his nonattendance was his infirm condition and inability to testify, even if he was at court. He had received a second stroke of paralysis and was not in sufficient health or physical condition to attend court, and the predicate shows that he would not be able to answer questions were he present. With this showing the court should have admitted the testimony of Dial, who was offered to reproduce the testimony of the absent witness. It will be noted the absent witness was a defense, not a state's, witness. The Constitution provides that the accused shall be confronted by the witnesses against him. The defense witnesses are not included in this inhibition of the Constitution. It is not the purpose here to discuss any of the questions involved in the reproduction of the testimony on the part of the state, and what may be said here has no reference to that phase of the law. But under the showing made it seems that appellant was entitled to the reproduction of the evidence of this witness. The predicate was ample and the testimony was material. The state's theory was that appellant committed the theft of McCauley's hog, and the indictment so averred. The state used McCauley and such other testimony as could be obtained to support the allegations in the indictment. Appellant's theory of the case was that the hog belonged to his father, and that his father had authorized himself and A. O. B. Kidd to take up this hog. To be more particular, the father of appellant, the absent witness, had 40 or 50 head of hogs; 4 of them were missing....
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