Runnels v. State, 23969.

• Decision Date: 05 May 1948
• Docket Number: No. 23969.,23969.
• Citation: 213 S.W.2d 545
• Parties: RUNNELS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 545

213 S.W.2d 545

RUNNELS v. STATE.

No. 23969.

Court of Criminal Appeals of Texas.

May 5, 1948.

Rehearing Denied October 6, 1948.

Appeal from District Court, Jackson County; Howard P. Green, Judge.

Roy Runnels was convicted of hog theft, and he appeals.

Reversed and remanded.

W. H. Hamblen, of Edna, and J. W. Ragsdale, of Victoria, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction for hog theft with punishment of two years in the penitentiary.

The facts of the case are brief. Appellant, together with two other parties who lived out of the county, named Matthews and Leatherwood, on the afternoon of November 10, 1946, had been at the home of a negro where they were engaged, with others, in gambling. These three left about 5 o'clock in the afternoon. Along the road they saw some hogs. While the evidence is not perfectly clear, it seems that they were in the roadway but ran through a fence into a pasture. Runnels told the two out of county men that they were wild hogs, and suggested they shoot them. He said the woods were full of them. They killed some of the hogs and as they did so they saw another car coming down the road. The two out of county men drove away, leaving appellant at the place alone. When the car approached it was occupied by three men who had been engaged in the gambling. They invited appellant to ride with them but he declined, saying that the car in which he was riding had run out of gas, that it was gone for a supply and would be back. He had blood on his clothing and explained that he had cut his finger. These parties returned the next day, investigated the place, and went to the owner, William Utz, and informed him of what they had seen. The arrest followed.

The facts are sufficient to support the conviction and need not be discussed other than as demanded by a consideration of the question raised by his motion for change of venue.

The appellant timely filed his application for change of venue from Jackson County, alleging as ground therefor that there existed in Jackson County so great a prejudice against him that he could not get a fair and impartial trial. His motion was controverted by the State and both sides introduced witnesses in support of such contentions. Appellant produced thirteen witnesses who lived in various sections of the county. It is clearly indicated that most of them, if not all, are people of integrity who were in position to know the matters about which they testified. It was the opinion of all of them that the case had been much discussed; that there existed a great prejudice against appellant because of previous activities; and most of them concluded that in their judgment he could not get a fair and impartial trial in Jackson County.

The State introduced several witnesses of like character and standing in the county who had somewhat a different view. Most of them said they had heard but little talk about the case and it was their conclusion that he could get a fair and impartial trial in Jackson County. On cross-examination, however, it appears that they did not base this opinion on any favorable talk about him, but upon their confidence in the integrity of the men of Jackson County who would serve as jurors, and the belief of the witnesses that such jurors could and would, regardless of what they had heard about the defendant, try him according to the law as given in a charge by the court and based on the evidence which would be proven in the trial of the case.

Where the State has contested a motion for change of venue, and the court has heard the facts both for and against the motion, the conclusion of the trial court on the questions of fact will be binding on this Court unless there appears a clear abuse of discretion upon the part of the trial court. Considering the foregoing, it becomes our duty to determine whether or not the court had conflicting evidence sufficient to support his refusal to transfer the case. The appellant's evidence appears to be overwhelming. It comes from various places in the county and from men admittedly in position to give it. With one or two exceptions, they appear to have no interest in the appellant. Their opinion is entitled to respect, but the weight of that opinion must be based upon facts to support it. The mere opinion of others to the contrary cannot prevail unless they too base their conclusions on conditions which justify the same. The question we must here decide is whether or not they have given evidence in conflict with that produced by appellant to show the prejudice against him. The concluding opinions of the witnesses on the two sides are of much less importance than the evidence which they give about the expressions of sentiment. There is little material difference in the evidence as to existing prejudice against appellant. One group says it exists — they have heard much talk about it. The other group have heard but...