Randle v. State

• Decision Date: 19 December 1894
• Parties: RANDLE v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W. 953

RANDLE v. STATE.

Court of Criminal Appeals of Texas.

December 19, 1894.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

I. G. Randle was convicted of murder in the second degree, and appeals. Reversed.

John L. Henry, Miller & Williams, R. E. Cowash, S. H. Russell, and Crawford & Crawford, for appellant. R. L. Henry, John P. Gillespie, and H. P. Lawther, for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree, his punishment being assessed at confinement in the penitentiary for a term of 20 years; hence this appeal. When the cause was called for trial, appellant moved a change of venue, upon both grounds set forth in the statute. In support of both grounds there were 10 compurgators; and in support of the first ground, to wit, prejudice, there were 31. The contesting affidavit for the state was signed by the county attorney. The court, before the evidence began upon the issues involved in the motion, limited the number of witnesses to each side at 15, and of its own motion stopped the testimony, denied appellant the right to introduce further proof in support of the motion, overruled it, and put him upon his trial. The reasons for prohibiting the introduction of further evidence on the motion were—First, the evidence for and against it showed a prejudice in the county against the cause, and not the person of appellant; second, that this character of prejudice is not contemplated by article 578 of the Code of Criminal Procedure, but the prejudice there meant must be limited to the individual, and does not extend to the supposed crime or the case. Reasoning from these premises, the court concluded that the change of venue should be granted, if at all, under the provisions of article 579 of the Code of Criminal Procedure, and that all such prejudice can be reached by testing the veniremen in regard thereto, under the provisions of subdivision 13 of article 636 of said Code. That such was the view of the law entertained by the court is rendered certain by his language, set out in the bill of exceptions, to wit: "If prejudice against the case of the defendant and prejudgment of same constituted prejudice, such as is meant by the statute, then the defendant would be entitled to a change of venue." "Now, I take it that, under the facts in support of this motion, a change of venue could only be had under article 579 of the Code of Criminal Procedure. And, in order to warrant a change of venue under that article, the proper practice would be, before granting a change of venue, to first endeavor to procure a jury from the body of the people who know nothing of the case. The defendant is, under our laws, guarantied the right to challenge for cause any man who has prejudged his case; and, until an effort has been made to procure a jury from the body of the people who have not so prejudged the case, I do not believe this court would be warranted in granting a change of venue in this case."

The question here presented for our decision is: What is meant by the "prejudice," mentioned in article 578 of the Code of Criminal Procedure? Does it mean to prejudge the case? Or does it mean antipathy, dislike, or hatred against the accused, separate and distinct from his crime? Or does it mean prejudice against the accused and his case. In our view of the law, it means either. If there is such a prejudice existing against the accused that he cannot obtain a "fair trial by an impartial jury" in the county from which the venue is sought to be changed, it is immaterial from what source this prejudice comes, or what cause or causes produced it. We think the correctness of this position can be demonstrated. Our bill of rights provides that the accused in all criminal prosecutions "shall have a fair trial by an impartial jury." Article 1, § 10. This language is of no doubtful significance. The trial shall be "fair," and the jury "impartial." "Impartial" means "not partial; not favoring one party more than another; unprejudiced; disinterested; equitable; just. Jove is impartial, and to both the same." Webst. Dict. As thus defined, "impartial" evidently means not favoring a party or an individual because of the emotions of the human mind, heart, or affections. It means that, to be impartial, the party, his cause, or the issues involved in his cause should not, must not, be prejudged. The accused in this state, under our constitution and laws, is entitled to a "fair trial by an impartial jury"; and there is no other method provided by which an accused can be tried and punished. Looking to this supreme end, the constitution has further ordained that "the power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law; and the legislature shall pass laws for that purpose." Const. art. 3, § 45. This provision of the constitution, when applied to criminal causes, could have been ordained but for the purpose of guarantying "a fair trial by an impartial jury," provided for by the bill of rights. Any other interpretation would render it meaningless, useless, "as sounding brass or tinkling cymbal." In pursuance of and in obedience to these high commands of the constitution, the legislature enacted that "a change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine: (1) That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. (2) That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial." Code Cr. Proc. art. 578. The single and only purpose for which this law was enacted was to secure the accused the right to "a fair and an impartial trial," which is the "fair trial by an impartial jury" guarantied by the bill of rights. This statute realizes and is based upon the fact that there may be "so great a prejudice" or such "a dangerous combination" against the accused existing in the county in which the prosecution is instituted that he cannot obtain, or will be deprived of, "a fair and an impartial trial." The legislature, as a cause for challenge, has also provided "that the jury has a bias or prejudice in favor of or against the defendant," or "that, from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as will influence him in his action in finding a verdict." Code Cr. Proc. art. 636, subds. 12, 13. These provisions were enacted for the purpose of securing a fair and impartial trial, and apply as well to the state as to the accused. Construing them together, the word "prejudice," mentioned in subdivision 12, refers only to the person of the accused, and means hatred, ill will, dislike, antipathy, etc.

The law authorizing a change of venue proceeds upon the fact that, notwithstanding the most searching questions may be applied to the juror in regard to his bias or prejudice for or against the accused, or whether there is formed in his mind such a conclusion as to the guilt or innocence of the accused as will influence him in finding a verdict, still there may be in the county such a prejudice existing as to render it improbable that the defendant could receive a fair and impartial trial. If it be conceded that all obnoxious jurors could be kept off the jury by being questioned in regard to causes for challenge, then it would seem the law providing for a change of venue would be useless, and should have no place in our procedure, and the provisions of the constitution would be without purpose, reason, or object, —"unto the Jews a stumbling block, and unto the Greeks foolishness." If the juror who has formed an opinion—prejudged the case —can be detected and rejected, under the provisions of subdivision 13 of article 636, why cannot the juror who has bias or prejudice in favor of or against the individual be detected in the same manner?

But it is contended that, if the accused is entitled to a change of venue, it is by reason of the provisions of article 579 of the Code of Criminal Procedure, which is as follows: "When an unsuccessful effort has been once made in any county to procure a jury for the trial of a felony, and all reasonable means have been used, if it be made to appear to the court, by the written affidavit of the attorney for the state or any other...