Williams v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Davidson
• Citation: Williams v. State, 170 S.W.2d 482, 145 Tex. Crim. 536 (Tex. Crim. App. 1943)
• Decision Date: 14 April 1943
• Docket Number: No. 22421.,22421.
• Parties: WILLIAMS v. STATE.

170 S.W.2d 482

WILLIAMS v. STATE.

No. 22421.

Court of Criminal Appeals of Texas.

April 14, 1943.

COPYRIGHT MATERIAL OMITTED

Commissioners' Decision.

Appeal from District Court, Bowie County; N. L. Dalby, Judge.

Matt Williams was convicted of rape, and he appeals.

Judgment reversed and cause remanded.

W. N. Harkness, of Texarkana, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This is a rape case, with the death penalty assessed.

At the outset, we are confronted with the contention that the trial court was without jurisdiction.

The offense was alleged to have been committed on July 3rd, 1942. The indictment was returned and filed on the 10th day of July, 1942. On the 17th day of July, 1942, or seven days after the return of the indictment, the trial court entered the following order, changing the venue of the case:

"On this the 17th day of July, A.D. 1942, in the above styled and numbered cause the court being of the opinion that a trial alike fair and impartial to the accused and the State cannot be reasonably he had in said cause for the reason that this is a cause in which the accused is accused of Rape upon a small white child and since the return of the indictment inthis cause there has been a lynching in this County of a negro accused of a like offense that feeling is so high among the citizens of the county that it would be impractical, if not impossible to have a fair and impartial trial in said county and on these grounds the court on his own motion has ordered adjudged and decreed that the venue in said cause be and the same is hereby changed to Red River County in this 102nd Judicial District of Texas."

Five days after the entry of the foregoing order, the trial court entered the following order, setting aside the order changing the venue:

"Be It Remembered that on this the 22nd day of July, A.D. 1942, the defendant in the above styled and numbered cause being present in open court came on to be considered the question of setting aside the order changing the venue in this cause to Red River County Texas, and it appearing to the court that no action hadbeen taken in respect to the order changing the venue in this cause other than the making and entry of said order and it further appearing to the court that said order was improperly made and without the consent of the defendant and the defendant in open court consenting that said order making said change should be set aside and that the trial of said cause be had in Bowie County, Texas.

"It is therefore ordered, adjudged and decreed by the court that the order heretofore made on the 17th day of July, A.D. 1942, changing the venue in said cause to Red River County, Texas, be and the same is hereby set aside annulled and held for naught and that this cause be and the same is retained on the docket of this court of Bowie County, Texas."

When the case was called for trial on the 30th day of July, 1942, the appellant filed his plea challenging the jurisdiction of the court to try the case, asserting that the order changing the venue had fixed jurisdiction of the case in the District Court of Red River County, and that the trial court was without authority to recall the case or to set aside the order changing the venue. The plea was overruled and a proper exception reserved.

The bill of exception bringing this matter forward fails to reflect any reason why the order changing the venue was set aside, other than, as stated in the order, that it "was improperly made and without the consent of the defendant". There is no finding or suggestion that the facts as set forth in the order changing the venue and upon which the order was based did not exist or no longer existed. Upon the hearing of the plea, the appellant testified, among other things:

"I was present when this case was transferred back down to Bowie County. I was asked if it would be satisfactory or agreeable to me if it were transferred back here, but I didn't know what he meant. I did not say it was agreeable with me for it to be transferred back down here. I told him to suit himself, if it was all right with him I didn't know nothing to say. I did not know what was meant when they told me it would be transferred back down here. If I had known what he meant I would not have agreed for it to be transferred back down here. I didn't know what it meant. I did not want to be tried in Bowie County."

At such time the appellant was without counsel to represent him, and it was only after the order setting aside the change of venue was entered that counsel was appointed to represent him.

The foregoing testimony and facts were not challenged by the testimony of any other witness.

Under the circumstances noted, no effect is to be given to the statement in the order setting aside the change of venue that appellant consented thereto, for, if jurisdiction had attained in the District Court of Red River County, consent of the appellant could not deprive that court of jurisdiction; and, if jurisdiction had not attached in that court, appellant's consent was unnecessary.

It is thus made to appear that the question here presented is whether, upon the entry of the order changing the venue, the District Court of Bowie County lost jurisdiction of the case and jurisdiction thereof automatically became lodged in the District Court of Red River County.

The power to change the venue of criminal cases is provided by the Constitution of this State, Art. III, § 45 Vernon's Ann.St. The mode, manner, and method by which that power is to be exercised by the courts is provided by statute, Subdivision 10, Chap. 4, Title 7, Code of Criminal Procedure.

Art. 560, C.C.P., reads as follows: "Whenever in any case of felony the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, can not, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue."

In ordering the change of venue to Red River County, the trial court found the existence of facts warranting the change of venue under said Article. Upon its face, the order was regular and was in accordance with law.

In the order setting aside the change of venue, there is no finding or suggestion that the facts found to exist in ordering the change of venue no longer existed or did not in fact exist in the first instance. In what particular the order changing the venue "was improperly made" the record does not reflect.

Under the record as thus presented, the first question presented for determination is whether the District Court of Bowie County, upon the entry of the order changing the venue of the case, lost jurisdiction thereof.

In the broad sense, venue, as applied to criminal cases, means the place in which prosecutions are to begin; while jurisdiction means the power of the court to hear and to determine the case. The terms are not synonymous. Venue may be acquired by consent—but not jurisdiction. Taylor v. State, 81 Tex.Cr.R. 347, 197 S.W. 196.

Touching the effect of a change of venue as changing jurisdiction, the rule is announced in 27 R.C.L. 825, Sec. 46, as follows:

"The effect of a change of venue is to remove the cause absolutely from the jurisdiction of the court awarding the change. Thereafter, such court can issue no further orders, and any steps taken by it in the case are of no effect. * * * A change of venue not only absolutely divests the court from which the cause was removed of jurisdiction, but it also clothes the court to which removal is had with the same jurisdiction that reposed prior to the change in the court of original venue." See, also, 12 Tex.Jur., p. 493, § 195.

While no case has been called to our attention —nor have we been able to find a case—wherein the rule stated has been directly followed by this court, yet in Webb v. State, 133 Tex.Cr.R. 32, 106 S.W.2d 683, an expression is found to the effect that an order changing venue vests jurisdiction in the court to which the venue is changed.

Likewise, in Seaton v. State, 115 Tex.Cr.R. 175, 29 S.W.2d 375, 377 it is stated: "A mistake of the trial judge in exercising his discretion to change the venue does not affect the jurisdiction of the court to which the transfer has been made."

On the other hand, there are cases where the order changing venue did not effect a transfer of jurisdiction. This was announced in Hollingsworth v. State, 87 Tex. Cr.R. 399, 221 S.W. 978, where the order changing the venue was held ineffectual to transfer jurisdiction because the indictment had been lost and no substitution thereof had been made before the venue was ordered changed, the indictment or a substituted copy being necessary to the jurisdiction of the court making the transfer.

In the light of the rule stated, and the cases mentioned, the conclusion is reached that, where a court having jurisdiction of the person and subject matter of one accused of a felony, by order changes the venue of the case, under and in accordance with the applicable statutes of this state, such change carries with it, and confers upon the court to which the venue is changed, full and complete jurisdiction of the case.

Having so concluded, the next question presented, then, is whether the Judge of the District Court of Bowie County was authorized, under the circumstances here shown, and at the same term of court, to set aside and thereby nullify the order changing the venue to the District Court of Red River County.

It is the general rule that a trial court has full power and control of its judgments, orders and decrees, during the term at which they have been made, and that, in the exercise of that power, he may, at the same term of court, correct, modify, or set them aside. 12 Tex.Jur., p. 736, § 366. Bankston v. State, 80 Tex.Cr.R. 629, ...