Phipps v. StatePhipps v. State
- Reporters:
- , ,
- Before:
- Lattimore
Lead Opinion
Aрpellant was convicted in the district court of Bosque County of manufacturing intoxicating liquor, and his punishment fixed at two years cоnfinement in the penitentiary.
*608 The facts show appellant’s presence a number of times at a place where, а large still was located and operated for the manufаcture of intoxicating liquor, and his participation therein.
Thе case originated in Somervell County and was transferred by the district judge of his own motion to Bosque County. When the case was cаlled for trial in Bosque County appellant interposed a рlea to the jurisdiction of the court on the ground that he was not present and consenting to the change of venue. In Littletоn v. State, 91 Texas Crim. Rep. 206, the matter is discussed at length and authorities collatеd. Since the early case of Rothschild v. State, 7 Texas Crim. App. 519, it has been the doctrine in this State that it is not necessary that the accused be present when the order for change of venue is made in his case. Orders made by the court relative tо change of venue are regarded as being preliminary tо the trial and nót a part of the trial itself. The matter of making an order so changing the venue of the court’s own motion is addressed almost entirely to his discretion and may be made whether the accused consents or not. Appellant cites Butler v. State, 38 Texas Crim. Rep. 560, and Harris v. State, 150 S. W. Rep. 447. These cases are discussed by this court in the comparatively recent case of Haley v. State, 88 Texas Crim. Rep. 649, and in so far as thеy conflicted with that .opinion, were overruled.
We regret that we cannot agree with appellant in his contention thаt the evidence does not support the verdict. Appеllant’s first bill of exceptions complains of the overruling of his рlea to the jurisdiction, and the remaining bill appears to bе taken to a large part of the argument of the State’s attorney, much of which must necessarily have been germane and cannot be considered by us as prejudicial without some.showing other than as appears in the bill.
No error appearing, the judgment will be affirmed.
Affirmed.
Addendum
ON MOTION FOR REHEARING.
LATTIMORE, Judge. —Appellant renews his сomplaint of the change of venue and his insistence that he was not present when the venue was changed. The matter was disposed of us by us in our former opinion upon the propоsition that this was not a complaint available. We cited authority. Our attention is now called to a fact which was not advеrted to in former opinion, viz: that the order of the court chаnging the venue recites the presence of appellant at court at the time. The matter of appellant’s absence seems to have been raised in his motion for new triаl. The order of the court overruling said motion recites that “thе court having heard said motion and the evidence thereоn submitted, etc., is of ojiinion that same should be overruled.” No evidence having been preserved *609 by any bill of exceptions аnd presented to ns, we are compelled to presume the correctness of the court’s action upon the еvidence heard. We see no reason to change our conclusion as expressed in the original opinion regarding the sufficiency of the facts.
The motion for rehearing will be overruled.
Overruled,