
    HENDERSON v. STATE.
    (No. 8270.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Rehearing Denied May 5, 1926.
    Application for Leave to File Second Petition-for Rehearing Denied June 2, 1926.)
    1. Criminal law <§=>547(1) — Production and identification of stenographer’s transcribed notes of testimony at former trial of witness, since deceased, and proof of facts related by such witness, held proper (Code Cr. Proc. 19(1, art. 843).
    In defendant’s third trial on murder charge, production and identification of stenographer’s transcribed notes of testimony at former trial of witness, since deceased, and proof of facts related by such witness, helé proper, though fact of previous trial and its adverse result was incidentally conveyed- to jury; Code jCSrZ Proc. 1911, art. 843, inhibiting comment on result of former trial not being violated.
    2. Criminal law <§=>542 — In defendant’s thirdt trial on murder charge, state, had right t<? reproduce testimony given at former trial hy witness since deceased.
    In defendant’s third trial on murder charge, state had right to reproduce testimony given at former trial hy witness since deceased.
    3. Witnesses <§=>287(1) — Witness, whose memory as to whether certain witness was sworn at previous trial, was challenged on cross-examination was properly .permitted to state, on redirect examination, why he remembered swearing of such witness.
    Witness, whose memory as to whether eer-tian other witness, since deceased was sworn at previous trial was challenged on. cross-examination, was properly permitted .to state, on redirect examination, why he remembered swearing of such witness, ’ since witness may explain any fact tending to create distrust of his truthfulness.
    
      4. Criminal law <@=>.396(2) — 'Where, on cross-examination, details of swearing of certain witness, since deceased, at former trial were brought out, testimony on redirect examination that such witness- was under care of peace officers held admissible (Code Cr. Proc. 1911, art. 811).
    Where, on cross-examination, details of swearing of certain witness, since deceased, at former trial were brought out, explanatory testimony on redirect examination that -such witness was under care of peace officers at time held admissible, under Code Or. Proc. 1911, art. 811, making whole of transaction admissible as explanatory of part introduced by adverse party.
    5. Witnesses <§=>370(3) — Evidence, on cross- . examination, that witness who appeared to impeach state’s witness, had as county attorney in previous trial, used witness, who disclaimed any knowledge of tragedy, held admissibie.
    Evidence on cross-examination, that defendant’s witness, w'ho appeared to impeach state’s witness, had, as county attorney in previous trial, used witness, who disclaimed any knowledge of tragedy, held admissible to affect-credibility and as bearing on animus.
    6. Witnesses <§=>344(2).
    In prosecution for murder, inquiry as to whether witness did anything but play poker for two years held improper.
    7. Criminal law <§=>622 (i/2) — Where motion to sever was granted, following indictment of father and son for murder, and father ordered tried first, motion at time of father’s third trial to reverse order of trial held properly denied (Code Cr. Proc. 1911, art. 727).
    Where motion to sever was granted, following indictment of father and son for murder, and father ordered tried first, motion at time of father’s third trial to reverse order of trial held properly denied, under Code Cr. Proc. 1911, art. 727, where it would work continuance.
    8. Criminal law <§=>956(13) — Evidence, on motion for new trial, held to warrant finding that jury had not discussed previous conviction, hanging of v/itness who testified at previous trial, or made experiment.
    Evidence, on motion for new trial in prosecution for murder, held to warrant finding that jury hadsnot discussed previous conviction, or hanging of witness who testified at previous trial, or made an experiment.
    9. Criminal law <§=>1158(3).
    On appeal, finding of trial court on conflicting- evidence on motion for new trial as to misconduct of jury is conclusive.
    10. Criminal law <@=>925¡/2(3) — Reference in jury room to former trial of accused held not to warrant reversal, where knowledge thereof was received by jurors during trial or prior thereto; “incidental reference.”
    Reference in jury room to former trial of accused held not to warrant reversal, where knowledge thereof was received by jurors dur- | ing trial or prior thereto; information re- l ceived from developments of evidence at trial being deemed “incidental reference.”
    11. Criminal law <§=>-1150 — On appeal, revision of order for change of venue made on court’s own motion can only be made where rights of accused have been materially prejudiced (Code Cr. Proc. 19(1, arts. 626, 631).
    On appeal, revision of order for change of venue, made on court’s own motion under Code Cr. Proc. 1911, art. 626, and not article 631, can only be made where rights of accused have been materially prejudiced.
    12. Criminal law <§=>l 117 — Motion to remand following change of venue on court’s own motion not containing statutory requisites and evidence under which was not brought up, will be considered merely as reiteration of protest (Code Cr. Proc. 1911, arts. 628, 634).
    Where change of venue on court’s own motion was protested, motion to remand when case was called which did not contain requisites required by Code Cr. Proc. 1911, art. 628, will be regarded merely 'as reiteration of protest, evidence adduced thereunder not having been brought up on appeal as required by article 634.
    On Motion for Rehearing.
    13. Criminal law <§=>714 — Reference of county attorney in argument to jury to fact that accused testified at previous trial held not comment on result of such trial (Code Cr. Proc. 1925, art. 759).
    Reference of county attorney in argument to jury to fact that accused testified at previous trials held not to violate Code Cr. Proc. 1925, art. 759, inhibiting comment on result of former trial, where accused’s evidence showed there had been two former trials at which he had testified.
    14. Criminal law <@=>714 — In introducing evidence of witness at former trial, since deceased, reference to statement of facts “used in the Court of Criminal Appeals” held not comment on result of1 former trial (Code Cr. Proc. 1925, art. 759).
    In introducing evidence of witness at former trial, since deceased, reference to statement of facts “used in the Court of Criminal Appeals” held not to violate Code Cr. Proc. 1925, art. 759, inhibiting comment on result of former trial, though such statement of facts can be used only after conviction.
    15. Criminal law <§=>714 — In cross-examination, question whether witnesses filed affidavits to secure new trial after previous trial held not comment on result of former trial (Code Cr. Proc. 1925, art. 759).
    In cross-examination of witnesses to show interest or bias in behalf of defendant, during third trial on murder charge, question whether they filed affidavits to secure new trial after previous trial held not to violate Code Cr. Proc. 1925, art. 759, inhibiting comment on result of former trial, though new trial could not have been sought except by accused.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    
      Joe Henderson was convicted of murder, and tie appeals.
    Affirmed.
    Thos. R. Bond, of Terrell, Young & Stinch-comh, of Longview, Johnson, Edwards & Hughes,-of Tyler, Wynne & Wynne, of Kaufman, Shields & Anthony, of Grand Saline, Rasbury, Adams & Herrell, of Dallas, and Cooley & Crisp, of Kaufman, for appellant.
    W. R. Jones, of Brownsville, Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

Appellant was convicted of murder, and his punishment fixed at confinement in the penitentiary for a period of 5 years.

There have been two previous appeals. The judgments of conviction were for the same offense. In the first trial the penalty assessed was confinement in the penitentiary for 09 years. The second trial resulted in a verdict assessing the punishment at 45 years in the penitentiary. See 229 S. W. 535, 89 Tex. Cr. R. 21, and 244 S. W. 1030, 92 Tex. Cr. R. 607.

The facts leading to and attending the tragedy are set out in some detail in the opinions of this court in the reports mentioned, and a restatement of them is not deemed essential in disposing of this appeal further than will be done in connection with the various bills of exception. The homicide occurred in Gregg county. There was a change of venue to Van Zandt county after the first trial, and to Kaufman county after the second trial.

Some of the bills of exception relate fo the procedure attending the examination of the witness Schoults. It is recited that counsel for the state, before beginning the examination of the witness said:

“At this stage we desire to introduce, first, the statement of facts as the record of the stenographic report of the testimony of the official statement of facts, taken at the trial of the defendant at Longview, which statement subsequently was filed with the clerk and used as the official stenographic report of the testimony taken on the trial in the Court of Criminal Appeals of Texas.”

Objection was made to this statement of the attorney for the state. The court said, “I sustain the objection.” Appellant’s counsel then said, “I am introducing the record” ; and turned to the witness Schoults and said, “Examine that paper, Mr. Schoults.” These remarks of the state’s attorney 'were made the subject of objection as an unwarranted effort to convey knowledge to the jury of the result of the former trial. Upon direct examination this witness testified that he was county attorney of Gregg county and participated in the first trial of the appellant and heard Henry Sargent testify as a witness in behalf of the state; Qiat Sargent was now dead. There was exhibited to the witness a paper which, upon examination, he stated, “I have had occasion to read this testimony heretofore from- this record.” On cross-examination the witness stated that the paper in his hand was the transcribed notes of the testimony given by the witness Sargent upon the first trial of appellant, which notes had been reduced to narrative form by the official stenographer. Archer, the official stenographer, was then called. He identified the paper mentioned and gave testimony to the effect that he had correctly reported the testimony of Sargent and transcribed it in question and answer form, from which the narrative statement of facts was made; the shorthand notes having been destroyed by fire.

The negro Sargent having given testimony upon the former trial of the appellant’s ease and having since died, it was the right of the state to reproduce upon the present trial the testimony of the deceased witness. See Porch v. State, 99 S. W. 1122, 51 Tex. Cr. R. 7; Young v. State, 199 S. W. 479, 82 Tex. Cr. R. 257. As a predicate for the reproduction of his testimony, it was deemed necessary to prove that the witness was dead; that there had been a previous trial of the appellant at which Sargent, after being sworn as a witness, gave testimony. It was also necessary, by competent evidence, to prove his testimony in substance. To lay the predicate mentioned, the state introduced the witness Schoults; and, to prove the testimony given by Sargent, the official court stenographer was called as a witness. It being essential in the reproduction of the testimony to prove that the witness Sargent had given the testimony at the former trial, it seems obvious that while by this means knowledge that there had been a previous trial necessarily came to the jury, it could not logically be held to’ violate article 843, O. C. P., of the statute which inhibits comment upon the result of the former trial, or the use of it as a basis for a presumption adverse to the accused. See opinion of.Presiding Judge Davidson in Tollett v. State (Tex. Cr. App.) 60 S. W. 964; also the case of Grimes v. State, 141 S. W. 261, 64 Tex. Cr. R. 65.

It is insisted, however, that in developing the present case and referring to the appeal from the result of the former trial in which it was revealed that there was a verdict of guilty, the procedure was violative of the statute mentioned, namely, article 843, O. O. P., and must necessarily vitiate the conviction. The statute in question reads thus:

“The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former convictions shall be regarded as no presumption of guilt, nor shall it.be alluded to in the argument.”

The opinions of this court reveal many instances in which, by reversal of the judgment, it has sought to protect the accused against the harmful transgression of the inhibition contained in the statute. See Benson v. State, 118 S. W. 1050, 56 Tex. Cr. R. 52; Wyatt v. State, 124 S. W. 929, 58 Tex. Cr. R. 115, 137 Am. St. Rep. 926; Pierce v. State, 222 S. W. 565, 87 Tex. Cr. R. 379. On the other hand, the court has recognized the fact that there may be an inadvertent or incidental reference to the former conviction of the accused which would not warrant a reversal. This principle was announced in the case of Baines v. State, 66 S. W. 847, 43 Tex. Cr. R. 491, and was reiterated and emphasized in the opinion of Judge Ramsey in Smith’s Case, 106 S. W. 1161, 52 Tex. Cr. R. 344, 15 Ann. Cas. 357, from which the following quotation is tahen:

“We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it he set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the eireujn-. stances that such reference and discussion did or might have prejudiced the appellant’s case. It is possible that there is some language in some of the decisions not wholly in accord with the views here expressed, but on full consideration this is believed to be the correct rule.”

The instances are numerous where the rule stated in Smith’s Case, supra, has since been approved. Among them are Coffman v. State, 165 S. W. 939, 73 Tex. Cr. R. 295, in which the opinion of affirmance was unanimous.

A witness, when asked if she had testified on the former trial, answered that she did at the time the accused got the death sentence. The court instructed the jury to disregard the remark. The matter was properly brought up by bill of exceptions and rejected as a reason for reversal. Analogous cases are Arnwine v. State, 114 S. W. 796, 54 Tex. Cr. R. 213; Morrison v. State, 47 S. W. 369, 39 Tex. Cr. R. 519; Oates v. State, 121 S. W. 370, 56 Tex. Cr. R. 575.

The production of the transcribed notes of the stenographer, the identification of them, and the proof of the facts related by Sargent by the witness who heard his testimony, occur to us to have' been proper means of bringing the matter in'hand before the jury. The fact that they incidentally resulted in conveying to the jury the fact that there had been a previous trial and that it had resulted adversely to the appellant is not, we think, violative of article 843, C. C. P. After the witness Archer had given the evidence mentioned, Schoults was recalled for further cross-examination. He testified that, before giving testimony 'on the former trial, the negro Sargent had been sworn; that of this fact he had an independent recollection; that, while there had been some 75 or more witnesses who gave testimony in the trial, his recollection bore directly upon the witness Henry Sargent. Witness Schoults was interrogated in great detail, with reference to his recollection touching the administration of the oath to Sargent. The inquiry led to statements with reference to the locality of the various witnesses, the place at which court was held, and whether the witnesses were sworn individually or altogether, and various other details. Among other things, the witness said:

“1 ’can’t say just where the negro was standing, but I know when he was brought into the courthouse and why he was brought there, but I could not say whether he was standing on the right or the left of the clerk or right in front of him. I would not attempt to say what part of the house he was in. I was not looking at him all the time, but I know the negro was in there and- they told him to stand up. I heard all the witnesses told to stand up and be sworn.”

And added:

“And I can tell you why I remember it if you want me to do that; if you want to know why I know he stood up with the rest of the witnesses and was sworn, I can tell you.”

Counsel told him “No,” that he did not want to know why he knew, but wanted to test his memory, and then the witness testified that he saw the witness.stand up and be sworn; that he could not tell the jury where the witness was. Upon redirect examination, state’s counsel told the -witness to proceed to tell why he remembered the swearing of the negro. To "this inquiry objection was made upon' many grounds, all of which were overruled, and witness was permitted to testify: “Well they were after that negro; he was-having to be looked after all the time and watched by the peace officers; he had to be protected.” This bill is qualified with the statement that the memory of the witness was challenged on cross-examination by counsel for appellant, and, in view of the cross-examination, the court deemed it proper to permit the witness to state the reason that he was able to recollect the fact that the negro Sargent was sworn upon the former trial.

The purpose and tendency of the cross-examination of the witness Schoults was to discredit the truth of his statement that he recollected the swearing of the witness Sargent. The manner of the cross-examination was such as to impress the. witness and the attorneys for the state with the idea that the testimony of Schoults to the point mentioned was to be made a matter of serious controversy. It occurs to us that, in view of the cross-examination, the r.ules of evidence were not transgressed in permitting the witness to explain why he remembered the swearing of the negro Sargent. In Branch’s Ann. Tex P. C. § 94, it is said:

“The defendant or any other witness is entitled to explain any fact tending to create a distrust of his integrity or truthfulness.”

Many cases are cited in support of this yiew. Among them are the following, which illustrate the principle which is deemed applicable to the present matter: Cornett v. State, 112 S. W. 1071, 54 Tex. Cr. R. 372; Brace v. State, 62 S. W. 1067, 43 Tex. Cr. R. 48; State v. Ivey, 41 Tex. 38; Thompson on Trials (2d Ed.) vol. 1, § 475. The details of the transaction in which the negro Sargent was sworn having been gone into in the cross-examination, the explanatory testimony that the negro was under the care of peace officers was admissible under the statute making the whole of a transaction admissible as explanatory of a part introduced by the adverse party to the suit. See article 811, C. C. P.; Kunde v. State, 3 S. W. 325, 22 Tex. App. 65.

In allowing the cross-examination of the witnesses Stewart, Tom Davis, and Wyt-che, it is conceived that no error was committed. Stewart was present at the trial of the appellant at Longview. He was a friend of the appellant and of his son, Charley Henderson. According to his testimony, he knew' that the deceased Killingsworth possessed a pistol. He was aware that his ownership and possession of the pistol was a controverted issue .in the case. He was not a witness on the trial, but after the trial volunteered to make an affidavit of his knowledge of the possession of the pistol by the deceased in order that the-affidavit might be used by the appellant in his effort to secure a new trial. The conduct of Tom Davis was of like nature. The witness Wytche had appeared for the state as county attorney in the trial at Gregg county, and upon the present trial he appeared as a witness for the appellant to contradict and impeach the tes-" timony of Hughey on an important issue in the ease. The fact that Wytche, knowing that Hughey had disclaimed any knowledge of the tragedy, had thereafter used him on the trial in Gregg county as an eyewitness, and contended that the facts proved which came in part from the witness Hughey warranted the jury in inflicting the extreme penalty upon the appellant, was a matter worthy of consideration by the jury as bearing upon the animus of the witness Wytche, and was, we think, available to the state when adduced by way of cross-examination under the rule stated by Mr. Branch in the following words:

“The adverse party may( prove declarations .-of a witness which tend to show bias, interest, prejudice, or any other mental state or status which, fairly construed, might tend to affect Ms credibility.”

Numerous citations are collated under the section containing the text. See Branch’s Ann. Tex. P. G. § 163. The application of this rule of evidence is not abrogated in an instance wherein the discrediting fact relates to the conduct of the witness with reference to a former trial. 'Illustrative is the following quotation from the opinion of this court, written by Judge Davidson, in the case of Tollett v. State (Tex. Cr. App.) 60 S. W. 964:

“If appellant took the .witness stand in his own behalf, and his testimony upon the trial was different from that delivered by him on the former trial, this fact could be shown, and defendant could be questioned in regard to it. If his testimony was, word for word, taken down on the former trial, and his testimony on this trial in regard to the same matter was different, his former evidence could be shown or read to him by the district attorney preparatory to impeachment. This is authorized by law, and has not been held to be an infraction of the statute prohibiting reference to former trials. It might be necessary where a witness on a subsequent trial has changed his testimony as given on a former trial, 'to prove his testimony on the former trial, as the basis- of impeaching his evidence on the subsequent trial. The statute in question never intended to cut off all rules of evidence. As the bill presents the matter no error is shown.”

See, also, Ashilock v. State, 16 Tex. App. 21. from which the following is quoted:

“We think the district attorney had the right, on the cross-examination of defendant’s witnesses, to elicit from them that they had testified before the grand jury in this same case, and' had done so without being subpoenaed, and at the instance of defendant, etc. This was allowable for the purpose of showing the bias of the witnesses in favor of the defendant, and to enable the jury to properly weigh the testimony of said witnesses. Stevens v. The State, 7 Tex. App. 39.”

The inquiry of the witness, Tom Moore, in these words, “So that the two years you stayed out there you didn’t do a thing but play poker, did you?” was improper. Objection to it was sustained. Considering the record, the incident is not deemed important.

In bill No. 12 complaint is made' of the refusal of the court to continue the case in order to secure the testimony of Charley Henderson. EYom the averments in the motion and the exhibits attached thereto, it is made to appear that in the year 1919, a joint indictment for the murder of Robert Killings-worth was presented against the appellant and Charley Henderson, a son of the appellant ; that, after discussing the facts with the main witnesses for the state, an application for severance was made by Charley Henderson upon the averment that it was not believed that there was sufficient evidence against Joe Henderson to warrant his conviction, and that it was desired that he be first tried to the end that his testimony might be used upon the trial of Charley Henderson. This motion to sever was granted, since which time the appellant has been twice tried or at least a verdict of guilty lias been rendered against him. The purpose of the present motion was to reverse the order of trial affected by the severance brought about by appellant, so that Charley Henderson might be tried first. In the meantime, that case had been removed on a change of venue from Gregg county to Nacogdoches county, where it was pending. Article 727, C. C. P., which controls the subject in question, declares that this does ,not apply where the severance sought would work a continuance of the case. It seems clear that under the existing conditions the ruling of the court in refusing to defer the trial of appellant to await the disposition of the Charley Henderson case was correct. Locklin v. State (Tex. Cr. App.) 75 S. W. 305; Polk v. State, 152 S. W. 907, 69 Tex. Cr. R. 53; Sapp v. State, 223 S. W. 459, 87 Tex. Cr. R. 606.

Upon the hearing of the motion for new trial, G. E. Boggs, who sat upon the' jury, testified that some one whose name he could not recall was mentioned at the previous trial of the appellant; that he would not say that it was discussed, but that some one might have been mentioned at "the previous trial. It was mentioned in connection with the fact that it had been brought out upon the present trial that there had been a previous trial and conviction of the appellant at Longview; that there was something of that kind mentioned in connection with the testimony of Mr. Schoults, and there was also evidence to the effect that some of the witnesses on the present trial made affidavits which were attached to the motion for new trial in Gregg county, and from these facts the juror drew the inference that there had been a conviction. He also testified that the witness Davis had testified that he stepped the distance from the house of the witness Hughey to where the homicide took place; that it was a distance of 200 yards; that Hughey had testified that at that distance he could distinguish a white man from a negro. The witness said he did not think there was any test made in the jury room to ascertain whether such recognition could be made; that somebody sitting in the window- said, “That looks like a negro yonder”; that the witness recognized a certain negro, Old Ben, whom he had known for a number of years. He said that the mention of the previous trial was1 casual, ánd that it was his recollection that the foreman wanted them to refrain from discussing it. The juror said that he had heard of the conviction before he was selected upon the jury.

Ownsby, one of the jurors, said:

“I recall that some one asked what had become of the negro who had testified, and some fellow remarked that they had hung him. They did not say who had hung him, but I supposed it was the Hendersons.”

The juror gave the name of Monk as the name of the juror to whom he was talking at the time it was mentioned. On redirect examination, he stated that before he was selected as a juror he knew of the trials but did not know of the convictions.

Monk testified that he heard nothing said about the negro Sargent having been hung; that he did not say it and heard no one else say it. It was proved on the trial that he was dead. The juror had talked with Owns-by but not while they were alone. This witness knew that there had been previous trials of the appellant at the time he was taken on the jury, but did not know of the results of them.

Colquitt, another juror, heard no discussion or mention of the former trial, nor of the cause of the death of the negro- Sargent. This juror, at the time he was selected, did not know of the previous trials, but learned during the preseht trial from the evidence of the negro Sargent, which was introduced on ' the trial, that there had been a previous conviction of the appellant. He also heard questions propounded by one of the attorneys for the state to one of the witnesses wherein he was asked if it was not a fact that he had never testified until after the conviction at Longview.

Burk, another juror, said that he heard no discussion of the previous conviction of the appellant; that he did not know of his_ previous conviction until after the verdict in the present case was rendered and he was discharged. He did not know before going on the jury that there had been a previous trial, but did not'learn until the conduct of the trial that there had been a conviction.

McVey testified that he heard no discussion of the previous conviction and no mention of the negro, Henry Sargent, having been hung. ' The manner of his death was not mentioned or discussed. From the inquiry about the affidavit attached to the motion for new trial which was -brought out upon the trial, the juror might have thought that there had been a previous conviction. He learned that there had been a previous trial from the evidence adduced.

Touching the averment in the motion for new trial, to the effect that there was a discussion of the previous conviction, or that there was an experiment with reference to the distance in which a negro might be recognized, or that there had been any statement in the jury room that a negro had been hung or that the appellant had been connected with his death, we think there is either an absence of proof or such conflict as warranted the trial court in deciding the issue of fact against the appellant. Under such circumstances the rule is well settled that on appeal the finding of the trial court is conclusive. Shaw v. State, 22 S. W. 588, 32 Tex. Cr. R. 155; Adams v. State, 93 S. W. 116, 48 Tex. Cr. R. 452; and other cases collated in 'Branch’s Ann. Tex. P. C. § 574.

Relating to the averment that there was reference to or mention of the former trial of the appellant, we think that this cannot be regarded as receiving new evidence by the jury. The reproduction of the testimony of the witness Sargent, brought into the case; by legitimate means, evidence that there had been a previous trial of the appellant. Moreover, many members of the jury, at the time they were impaneled, were aware of the fact that there had been a previous conviction. The knowledge, therefore, of the former trial did not come to the jury after their retirement, but was received by them either during the progress of the trial or prior thereto. Under such circumstances, a reversal is not warranted. Moore v. State, 107 S. W. 540, 52 Tex. Cr. R. 336; Oates v. State, 121 S. W. 370, 56 Tex. Cr. R. 571; Arnwine v. State, 114 S. W. 796, 54 Tex. Cr. R. 213; Wood v. State, 217 S. W. 1037, 86 Tex. Cr. R. 550; Patterson v. State, 221 S. W. 596, 87 Tex. Cr. R. 104; Morris v. State, 206 S. W. 82, 84 Tex. Cr. R. 100.

In so far as the jury may have been authorized to infer from the developments of the evidence upon the trial that there had been a previous verdict of guilty, the information so received is deemed but an “incidental reference” within the purview of the law as declared in the case of Baines v. State and Smith v. State, supra, and others to the same effect.

The trial judge, upon his own motion, changed the venue of the appellant’s ease from Yan Zandt to Kaufman county. Appellant requested that the order be rescinded, and offered evidence controverting the recital in the order of transfer to the effect that a fair and impartial trial alike to the state and the appellant could not be had in Yan Zandt county. The court declined to hear this evidence.

We have examined the proffered testimony, and express the opinion that it presents such a conflict as would make it discretionary with the court to order the change of venue if his discretion had been an issue conditioned upon the terms of article 631, C. C. P. Henderson v. State, 229 S. W. 535, 89 Tex. Cr. App. 21. His authority for changing the venue, however, was not dependent upon article 631, C. C. P., which names the procedure and circumstances upon which an application by the state or the accused to change the venue may be granted or refused. The order in the present case is based upon article 626, C. C. P., which vests in the trial judge the authority, upon his own motion, to make the change. The order in the present case contains the recitals which are prescribed by that article as the basis of the transfer, namely, that:

The “judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the state, cannot from any cause, be had in the county in which the case is pending.”

We understand the law to be that the revision of such an order upon appeal can only be made in a case in which it is shown that the rights of the accused have been materially prejudiced by the action of the court in changing the venue. Rothschild v. State, 7 Tex. App. 519; Bohannon v. State, 14 Tex. App. 271; Woodson v. State, 6 S. W. 184, 24 Tex. App. 153; Walker v. State, 42 Tex. 360. In the present case, we fail to discern any abuse of the discretion vested in the trial judge. Treadway v. State, 144 S. W. 655, 65 Tex. Cr. R. 208; Mayhew v. State, 155 S. W. 191, 69 Tex. Cr. R. 187; English v. State, 213 S. W. 632, 85 Tex. Cr. R. 451; Baker v. State, 220 S. W. 326, 87 Tex. Cr. R. 213.

Upon the calling of the case in Kaufman county, appellant made a motion to remand the case to Yan Zandt county. This motion does not contain the requisites required for a change of venue which are set out in article 628, C. C. P., and the evide'hcei adduced thereunder is not brought up by bills of exceptions or statements of facts filed during the term at which the conviction was had, as is required by article 634, O. C. P., relating to motion to change the venue. The motion to send the case back to Yan Zandt county therefore, could be’ regarded as nothing more than a reiteration of the protest and exception urged against the order as originally made. As it appears in the record, we are of the opinion that no error is shown to have been committed in either of the matters complained of in the bill under discussion.

Finding no error warranting a reversal, an affirmance is ordered.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists in his motion for rehearing, that this court erred in the disposition of the questions which related to the alleged misconduct of the jury and to the complaint that article 759, C. C. P. (formerly article 843) had been violated. We think the point made as to alleged misconduct of the jury correctly disposed of in the former opinion, and further discussion of it is not necessary.

Article 759 is as follows:

“The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be-alluded to in the argument.”

‘The only contention that former convictions of appellant were alluded to in argument is based on the language of the county attorney referring to appellant as a witness wherein he said to the jury, “If you had testified before three juries as this defendant has you’d be a good witness, too.” The record shows from appellant’s own evidence on this trial there had been two former trials and that appellant testified on. eacli of them. We see nothing in this argument which can be legitimately construed as a reference to the result of those trials. The remaining question then for this court to determine seems to be whether the examination of witnesses was so conducted that it can legitimately be 'said former convictions of accused were used against him as a presumption of his guilt in the present trial. The state proved that one Sargent, an eyewitness to the killing, was dead, and that the original stenographer’s notes of his. testimony given at a former trial, had been destroyed by fire. The state was seeking to reproduce his testimony by using the narrative statement of his evidence made by the stenographer on that trial, and in doing so referred to it as the official stenographer’s report of the testimony which had been filed with the clerk and used in the Court of Criminal Appeals of Texas. This was objected to as in violation of said article 759. One Hughey had testified ' for the state. Appellant sought to .break the force of his testimony by the witness Davis, whose evidence tended to impeach that given by Hughey. On cross-examination of Davis, the attorney for the state proved by him that he did not testify upon the trial of' appellant in Gregg county, and asked him if immediately after that trial he did not file an affidavit asking for a new trial. This question was also objected to as being violative of said article 7591, and as being an effort to inform the jury that appellant had been convicted at. the trial in Gregg county. Appellant used the witness Stewart. Upon cross-examination it was elicited from him that all the facts testified to by him at the present time were known to him at the time of the former trial, but that he h'ad given no information as to his knowledge, and was asked if, immediately after the former trial was over, he was not one of the men who subscribed to an affidavit setting out the facts now sworn to by him for the purpose of securing a pew trial. This was objected to as. violating said article 759.

It is urged by appellant that it was not necessary for counsel representing the state to have referred to the statement of facts mentioned in the first complaint as having been “used in the Court of Criminal Appeals,” nor was it necessary to ask the witnesses heretofore mentioned if they had not filed affidavits “for the purpose of securing a new trial;” that the questions were purposely so framed in order to convey to the jury information that appellant had been convicted upon the former trial. We think the record does not warrant us in reaching the latter conclusion.

There may have been men upon the jury sufficiently informed with reference to procedure in this state to have drawn the conclusion that a new trial could not have been sought by any one except appellant, or that it would only be after conviction that a “statement of facts”' could be used in the Court of Criminal Appeals, but we do not think it necessarily follows that the questions objected to were purposely so framed that the jury might reach the conclusion complained of. ‘ -In one instance the state was seeking to lay a predicate for the introduction of the testimony of a dead witness. In the other instances the state was engaged in legitimate cross-examination of witnesses to show their interest or bias in behalf of appellant. We .think the inference cannot be reasonably drawn that it was an effort on the part of ■the state to get before the jury the fact of conviction on the'former trial in order to use it as a presumption against appellant upon the present trial, nor that it so resulted. In one instance it appears that cpunsel representing the state referred to a former conviction. It occurred in this manner: The witness Moore had testified for appellant that upon one occasion he had seen deceased with a pistol. Upon cross-examination he was asked the following question:

“Did you make an affidavit immediately after the trial setting forth the fact that, while you were in the courthouse (at a former trial) you heard argument to the effect that the deceased did not own a pistol and had never owned a pistol, but that you did not realize the importance of it, and that you did not tell Mr. Henderson the facts about it until after the conviction?”

It is urged by appellant that this was & direct reference to the former conviction in contravention of said article 759, C. C. P. The recital of facts in the bill indicates that the purpose of counsel was to show the interest of the witness Moore as affecting his testimony. The reference to the former conviction seems to have been in the affidavit made by the witness to the effect that he did not realize -until after such conviction the importance of the facts claimed to be within .his knowledge and the inquiry was about this affidavit. We think it may be justly regarded as an inadvertent reference to the former conviction and does not bear the legitimate construction of an effort on the part of counsel representing the state to use that fact as a presumption against appellant upon this trial, and within the principle announced in Tollett’s Case (Tex. Cr. App.) 60 S. W. 964, and Ashlock’s Case, 16 Tex. App. 21.

Believing the case to have been properly-disposed ‘ of in our original opinion, appellant’s motion for rehearing is overruled.

On Application for Leave to Pile Second Motion for Rehearing.

LATTIMORE, J.

We have carefully considered- appellant’s application. It is not shown that we declined to consider or omitted to consider any material issue as to the rights of appellant, nor are matters here set up that were not discussed and passed upon. either in the original opinion or when before the court on rehearing. Leave to file second motion for rehearing will he refused. Hickman v. State, 93 Tex. Cr. R. 407, 247 S. W. 518. 
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