Parr v. State

• Decision Date: 18 January 1928
• Docket Number: (No. 11022.)
• Citation: 1 S.W.2d 892
• Parties: PARR v. STATE.
• Court: Texas Court of Criminal Appeals

1 S.W.2d 892

PARR v. STATE.

(No. 11022.)

Court of Criminal Appeals of Texas.

January 18, 1928.

Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.

John Parr was convicted for selling intoxicating liquor, and he appeals. Reversed and remanded.

Williams & Williams, of Mt. Pleasant, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for selling intoxicating liquor; punishment being one year in the penitentiary.

The trial was had in Franklin county on a change of venue from Titus county. Appellant attacked the jurisdiction of the court in Franklin county on the ground that the order changing the venue was improperly made. The indictment was returned by the grand jury of Titus county on the 9th day of February. The order changing the venue was made on the 10th day of February. Appellant had no attorney present representing him, was not under arrest at the time, and was not arrested until the 12th day of February, at which time the court in Titus county had adjourned. The reason recited in the order for changing the venue was that a trial alike fair and impartial to the accused and the state could not be had in Titus county "at the next term of the court." The same judge who made the order changing the venue presided at the trial in Franklin county. In a plea to the jurisdiction of that court, appellant urged that the transfer of the case was improperly made, first, because he had not been arrested when the venue was changed; second, because it was not true that an impartial trial, fair alike to the accused and the state, could not be had in Titus county; that the real reason prompting the change of venue was that some one had intimated to the court that the state's witness might be gotten out of the way before the next term of court in Titus county. The court's own qualification to the bill of exception would seem to lend support to the establishment of appellant's averment.

Not having been arrested at the time the order changing venue was entered, appellant had no opportunity to be heard or make objection to such action on the part of the court, and hence there is no application of the authorities holding that, unless exception is reserved at the time the order is entered, later complaint thereof will not be considered. See cases collated under note 3, art. 568, 1 Vernon's C. C. P. Where a change of venue has been made upon the court's own motion, his action will not be reviewed, unless there has been an obvious and clear abuse of his discretion under the statute. Stevens v. State, 42 Tex. Cr. R. 154, 59 S. W. 545; Branch's Ann. Tex. P. C. § 299; Taylor v. State, 81 Tex. Cr. R. 347, 197 S. W. 196; Baker v. State, 87 Tex. Cr. R. 213, 220 S. W. 326; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765. The record may present one of those exceptional cases where the court would be justified in holding that the order for the change of venue was in fact based upon a ground not authorized by the statute, but we find it unnecessary to base our opinion upon that feature of the case.

Appellant was not arrested until several days after the order was entered and after the court in Titus county had adjourned for the term.

"There are three questions, as a general proposition, of jurisdiction: First, of the person; second, of the subject-matter, and, third, the power of the court to render the particular judgment it does render. Without a concurrence of these there can be no legal authority in the court to try the case or render a judgment. Ex parte Degener, 30 Tex. Cr. App. 566 . For collation of cases, 5 Rose, Notes, p. 863. That case has been followed in a great number of cases and is now the settled law not only by authority of the decisions but by reason of its inherent strength and correctness." Taylor v. State, 81 Tex. Cr. R. 347, 197 S. W. 196.

The court in Titus county had gained jurisdiction of the case, that is, the subject-matter, when the indictment was returned into court by the grand jury, but it had never secured jurisdiction or control over appellant's person. The learned trial judge may have been misled by the opinions in Rothschild v. State, 7 Tex. App. 519; Phipps v. State, 100 Tex. Cr. R. 607, 272 S. W. 209, and other cases holding that it is not necessary for accused to be present when the order changing the venue is entered. In none of the cases does it appear that the order was made prior to the arrest of accused. In Rothschild v. State, which is the leading case on the subject, accused himself made the application for the change of venue, and was present during the hearing on the application. He was not in court when the order of transfer was actually made, but was represented by counsel who was present and saved a bill of exception to the order....