1 S.W.2d 892 | Tex. Crim. App. | 1928
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. Appeallant 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 someone 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, Vernon's C. C. P., Vol. 1). 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.Crim. Rep.; Branch's Ann. Tex. P. C., Sec. 299; Taylor v. State, 81 Tex.Crim. Rep.,
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.Crim. App. 566. For collation of cases, 5th Vol., Roses 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.Crim. Rep.,
"This article (564 Cow. C. P.) evidently contemplates that all questions relating to the form of the indictment, and other incidental questions, must be raised and disposed of before a change of venue, and that nothing should remain thereafter but the trial of the general issue. Caldwell v. State, 41 T. 86; Loggins v. State, 8 Crim. Rep. 434; Ex parte Cox, 12 Crim. Rep. 665; see Barr v. State, 16 Crim. Rep. 333.
"This article requires that all matters which do not affect the substance of the change must be disposed of before the defendant applies for change of venue. Vance v. State, 34 Crim. Rep. 395,
Note 4, page 490, Vernon's C. C. P., Vol. 1. None of the things held to be contemplated by Art. 564 could be accomplished before the accused had been arrested. Art. 571 Cow. C. P. provides that if accused is on bail when the venue is changed he shall be required to enter into a recognizance conditioned upon his appearance before the court to which the case has been transferred, and (Art. 573) if accused is in custody when the venue is changed an order shall be made for his removal to the proper county and for his delivery to the sheriff of said county. Both Arts. 571 and 573 very plainly indicate that accused should have been arrested and brought under the control of the court before any right to order a change of venue was contemplated.
In our opinion the judge in Titus County had no power to order the case to Franklin County until after appellant had *555 been arrested. The disposition of the case makes it unnecessary to consider other questions presented.
The judgment must be reversed and the cause remanded.
Reversed and remanded.