Tolston v. State

• Decision Date: 17 November 1897
• Citation: 42 S.W. 988
• Parties: TOLSTON v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W. 988

TOLSTON v. STATE.

Court of Criminal Appeals of Texas.

November 17, 1897.

Appeal from district court, Waller county; T. S. Reese, Judge.

Rufus Tolston was convicted of burglary, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary; hence this appeal.

One of the assignments of error urged against the conviction is the alleged failure of the state to prove venue in the case. This question is presented by a bill of exceptions, to which is appended affidavits; and defendant showed by an affidavit that no venue was proved in the case, while, on the other hand, the state presented affidavits showing that the venue was proved. The bill shows simply that the court overruled the motion, without stating whether he found the one or the other to be true. As it was necessary, however, for him to decide the question as presented, we will take it for granted that he decided, in favor of the state's affidavits, that the venue was proved. However, aside from the affidavits, if we recur to the statement of facts, the first witness introduced by the state makes proof of venue. His statement on this subject is as follows: "I live at the `Poor Farm' in Waller county, Texas. My brother-in-law Sydney Norwood lives there with me. We lived there last year. He had last year a cotton house on Mr. Hinton's place, adjoining the Poor Farm, in which he kept seed cotton in the fall. From where I live, on the Waller County Poor Farm, is about 300 yards to Hinton's, where the cotton house was." He then proceeds to tell of the burglary of said house. Now, although it is not made absolute from this statement that the cotton house which was burglarized was within Waller county, it was certainly satisfactorily shown that it was within 300 yards, which, under our statute, was sufficient proof of venue. But, as we understand our recent legislation on the subject, this matter must be embodied in the bill of exceptions. The statute evidently intends that the bill of exceptions must make it affirmatively appear that the venue was not proved. The bill as allowed by the judge in this case embodies affidavits pro and con. The court, in its action in overruling the motion, appears to have held that the venue was proved. At least, the effect of his holding is to negative the idea of it affirmatively appearing that no venue was proved; and we hold that there was no error in...