Moore v. State
| Decision Date | 25 March 1904 |
| Citation | 79 S.W. 565 |
| Parties | MOORE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Fannin County; Ben H. Denton, Judge.
R. H. Moore was convicted of murder, and appeals. Reversed.
James G. Dudley, J. C. Hodges, B. B. Sturgeon, Bruce McMahan, and Fred Dudley, for appellant. Jas. H. Lyday, J. C. Meade, Dist. Atty., and Howard Martin, Asst. Atty. Gen., for the State.
Appellant was indicted in Lamar county for the murder of McLaughlin. When the case was called for trial, he filed an application to change the venue to Delta county, on the ground of existing prejudice against him in Lamar county. The court granted the application, but changed the venue to Fannin county. The state's contest is supported by the affidavit of McQuistian, Ball, and Humphreys. This affidavit states that the allegation in regard to prejudice set up by appellant is local, being confined principally to Paris, and is more against the crime charged, than against appellant; that one of his compurgators is related to him (being his brother-in-law); and that said compurgators have not, as these affiants verily believe, any knowledge of such prejudice existing among the great majority of the citizens of Lamar county. This answer of the state was met by demurrer. Our statute provides that there may be a change of venue from the county of the alleged crime, or where the prosecution is commenced, where there is so great a prejudice against the accused that he cannot obtain a fair and impartial trial. Appellant's application was based upon this ground. The statute further provides that the credibility of the persons making the affidavit for the change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person, and the issue thus formed shall be tried and determined by the judge, and the application granted or refused as the law and the facts warrant. It will be observed that the affidavit filed by the state does not attack the credibility of appellant's compurgators, nor their means of knowledge. This must be done in order to raise an issue. Davis v. State, 19 Tex. App. 201; Carr v. State, 19 Tex. App. 645, 53 Am. Rep. 395. We do not believe anything could be added to the reasoning in the cases cited, and they are conclusive of the question presented. Appellant was therefore entitled to a change of venue, and the court erred in not sustaining his demurrer to the affidavits filed by the state. This being true, it follows that the court was in error in admitting testimony, there being no issue. A bill of exceptions was reserved to this action of the court. The court, in the judgment or finding in regard to the application to change the venue, recites that the conditions existed practically in Delta county upon the issue involved as in Lamar county. This information, if true, was derived from the testimony introduced on the contest. As the issue was presented, appellant was entitled to a change of venue to Delta county. Upon another trial, if the motion to change the venue is again presented, and a contest should arise, and the evidence should disclose, in the opinion of the court, that the fact of prejudice exists in Delta county, so as to preclude a fair and impartial trial, then the statute under which this application was made would require the court to change it to the county containing a courthouse nearest to that of Lamar county, which, under this record, would be Red River. The state relies upon the case of Bohannon v. State, 14 Tex. App. 271. In that case the court found as a fact that, within the knowledge of the court, in Wharton county, to which it was sought to change the venue, the same facts existed, and therefore the venue was changed to Austin county; but the court made no such finding in the case at bar, nor did he find that the courthouse of Fannin county was the nearest to that of Lamar county. If we look to the facts of the case, as developed by the contest, there might be some rather cogent reasons why this case should not go to Fannin county. The Bohannon Case is not in point, as we understand this record, but the case is brought fairly within the rule laid down in the Davis and Carr cases, supra.
During the trial the orders, decrees, judgments, and proceedings entered in this case in Lamar county in regard to changing the venue were offered to the court alone, and, it seems, not for the benefit of the jury. Defendant objected to this, because these matters were inadmissible for any purpose, and its only effect was to prejudice the jury against defendant because the case had been removed. The bill is signed with the qualification that the counsel for the state offered the orders and decrees to the court alone, and in a rather undertone of voice, and it was thought by the court that the jury would not have been informed for what purpose the papers were offered if appellant's counsel had not gotten up and stated what these papers were....
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Mayhew v. State
...If it was necessary to decide this question, we are of opinion the court erred in transferring it from this viewpoint. Moore v. State, 46 Tex. Cr. R. 54, 79 S. W. 565. Change of venue by the judge is not arbitrarily confided to him or his discretion. His discretion is to be exercised in the......
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Bullock v. State
...94 S. W. 1041; Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044; Wakefield v. State, 50 Tex. Cr. R. 124, 94 S. W. 1046; Moore v. State, 46 Tex. Cr. R. 54, 79 S. W. 565, and other cases cited by appellant. The court, therefore, under the circumstances and facts of this case, committed no err......
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...or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion. Moore v. State, 46 Tex.Cr.R. 57, 79 S.W. 565; Carr v. State, 19 Tex.App. 656, 39 Tex.Cr.R. 573; Davis v. State, 19 Tex.App. (201) 222; Logan v. State, 39 Tex.Cr.R. 573, 47......
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...of Kaufman county over the case. It was not a matter of evidence for the jury, but for the court alone." In the case of Moore v. State, 46 Tex. Cr. R. 54, 79 S. W. 565, it appears that the decrees and orders changing the venue were offered to the court alone, and, as it seems, not for the b......