
    COTTER v. STATE.
    (No. 11676.)
    
    Court of Criminal Appeals of Texas.
    May 29, 1929.
    Rehearing Denied Nov. 13, 1929.
    
      Everett Bryson, of Texarkana, J. A. Ward, of Mt. Pleasant, and J. H. French, of Dainger-field, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
    
      
      For opinion on application to file second motion for rehearing, see 22 S.W.(2d).
    
   HAWKINS, J.

Conviction for assault to murder; punishment, two years in the penitentiary.

About 11:30 p. m., August 7, 1927, Sheriff Carpenter of Camp county, while in the county jail of said county, was shot, the gun used being a shotgun and the shot appeared to be No. 2 shot. The evidence seems ample to support the conclusion that Sampy Parker did the shooting, and that appellant was present aiding and acting together with Parker at the time. The court did not charge on circumstantial evidence, and exception was properly reserved to the charge for this reason. It will be necessary to state part of the testimony in the case, to make plain our reasoning and conclusion upon the matter.

Wilson testified that he was in the jail, sitting in a window from which he could see the street, and that it was a bright moonlight night. He saw a car drive up and slow down from which a man alighted, and the car moved on down the street. He said the man who got out of the car came across the street carrying a gun, and that this man was Sampy Parker,.but he did not undertake to identify the man who was driving the car; that Parker looked both ways, up and down the street, then walked out of witness’ sight, came back and looked into the jail, and again walked out of witness’ sight; and that in a few seconds a'gun fired. One Bolden testified in substance the same as did Wilson. He also identified Parker as the man with the gun. One Burrell swore that he had started down a trail by the jail, hoard a shot, and, to quote from his testimony: “When the gun shot I looked up where I heard the shot and saw two men * * * they were between the jail house and the county bam * * * they were running out toward the west end of the barn ■* * * they had something that looked like a shot gun in their hands, to. me. Those men were Mr. Perrin Cotter (appellant) and Mr. Sampy Parker.” It was shown that not long before the shooting the sheriff arrested Sampy Parker on a misdemeanor charge and that the arrest was resisted, and Parker refused to go up the steps at the jail and was finally hit by the sheriff with his pistol. Thereafter Parker and appellant on many occasions made threats to get even with the sheriff and to kill him in various ways. One King testified that on Monday night after the shooting Sunday night, he met appellant and they talked about the occurrence on thoir way to Mr. Bryson’s office, and as they walked up the steps to Bryson’s office appellant said: “We liked to have got the s- of a b — ■— last night.” Witness asked him who “we” was, and appellant just laughed. Further in King’s testimony, referring to this conversation he said: “We were going up the steps there by the bank when he said that. I think that was all he said. From the way he talked he knew who did it. Yes, sir, he just said, ‘If I had done the shooting I would have shot lower and shot him in the back,’ and then as we were going up the steps to Everett’s office he said, ‘We liked to have got the s- of a blast night.’ ” Again speaking of another conversation had with appellant, King testified that appellant asked him (witness) why he did not get Hardy Burrell to kill him (evidently meaning Sheriff Carpenter), and said that while all the suspicion was pointing the other way, the negro would never be arrested. In this connection appellant said he had some bigger shot and would not have to get as close as he did before, and undertaking to give appellant’s exact language, King testified that appellant said: “Well I have bigger shot than we had before, and we wouldn’t have to get so close to him.”

Admissions and confessions of guilt by th'e accused may take the case out of the rule of circumstantial evidence. See Branch’s Ann. P. C. § 1040, for citation of authorities. Without attempting to reproduce in greater detail the testimony, we are of opinion that appellant’s statements referred to, taken together with these facts and others not set out, remove this case from the domain of circumstantial evidence. If there was any doubt on this point, however, ■ there could be none as to the application of the rule of juxtaposition, often upheld by this court. As said in Crews v. State, 34 Tex. Cr. R. 543, 31 S. W. 373, 374: “The appellant assigns as error the failure of the court to give a charge on circumstantial evidence. While it is true in this case that no witnesses testify that they saw the act of killing, yet the facts and circumstances of this ease are of á character to place defendant in such proximity and juxtaposition to the fact of killing as to render such a charge unnecessary, and, besides, the statements of deceased and Mrs. Crews were in the nature of positive evidence.” See also Kidwell v. State, 35 Tex. Cr. R. 265, 33 S. W. 342, a case in which in the darkness appellant and another were together when one of them inflicted the fatal wound, but which one the witness could not tell. We held no charge on circumstantial evidence necessary, because the facts so closely related themselves and made so evident the guilt of the accused as to leave no room for any other conclusion.

Appellant’s bill of exception No. 1 relates to alleged error in regard to a change of venue. Appellant made application, properly supported by compurgators, for such change on the ground of prejudice and the existence of a dangerous combination against him in Camp county where the prosecution was pending, and requested that the case he sent to Titus county, averring in the application that the courthouse of that county was nearest to the ones in Camp county. The application was not controverted upon any ground permitted by article 567, Code Cr. Proe. 1925, and no protest whatever to a change of venue was interposed. However, the state through her district attorney filed a written request that the case be sent to Morris county, representing that while the courthouse there was 4 miles farther than the courthouse of Titus county, yet the condition of .the roads to Morris county was much better. It was also suggested that the court in Morris county convened sooner than the one in Titus county, which would permit an earlier trial. This latter matter, however, seems unimportant in considering the question before us and will not be further adverted to. After hearing evidence regarding the removal, the court ordered the case sent to Morris county, certifying in said order that the court found as a fact that the courthouse in Titus county was 12 miles from the courthouse in Camp county and that the courthouse in M,orris county was 16 miles from the Camp county courthouse, but that a good and well maintained gravel highway extended from the courthouse in Camp county to the courthouse in Morris county, while the highway to Titus county had been newly constructed and in extremely wet weather was impassable, which caused travelers to Titus county from Camp county to detour by the way of the county seat of Morris county, and that bad road conditions were more probable to occur during the month of January when the next term of court convened in Titus county; that for this reason, among others, the venue was changed to Morris county. The order also recites that the court changed the venue of his own motion.

It is appellant’s position that when his application for change of venue was in proper form and uncontested on any of the grounds recognized by statute, he was entitled to removal of his case as a matter of law, and that the court had no right to ignore his application and undertake to order a change of venue on his own motion, but was required to act on appellant’s application and send the case to Titus county, which was nearest. We do not attach great importance to the averment in the application that the courthouse in Titus county was nearest, although expressions in some of the opinions cited by appellant may. convey a contrary idea, namely, Moore v. State, 46 Tex. Cr. R. 54, 79 S. W. 565; Wallace v. State, 48 Tex. Cr. R. 318, 87 S. W. 1041. In the absence of contest it is out understanding that the court was bound by the averments properly supported by compurgators as to prejudice and dangerous combination. We think the statute controls as to the county to which the case should be removed and the court would not be precluded from investigating ^at matter by reason of a representation in the application as to which was the nearest county. On the other hand, we think the court could not ignore an application for removal, good on its face, in the absence of a contest, and arbitrarily send the case of his own motion to a remote county which might be to appellant’s prejudice.

Article 565, Code Cr. Proc. 1925, provides : “Upon the grant of a change of venue, the cause shall be removed to some adjoining county, the court house of which is nearest to the court house of the county where the prosecution is pending,” unless such nearest county is subject to objection, which contingency is absent in the present case. The question is: Does the record in the present case show a substantial compliance with the statute, or does it show such disregard of it as demands a reversal? In Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939, 940, by unanimous decision of the court as then constituted it was said that: “The gist of an accused’s right to a change [of venue] is that he shall not be tried in a county where, from prejudice or combination against him, he cannot get a fair and impartial trial.” It was further substantially said in that opinion that the portion of the statute directing a removal to the county having the nearest courthouse (and not subject to objectionable conditions) was designed to serve the convenience of the parties and the witnesses to the litigation. It is further apparent from said opinion that this court should not overlook the changed conditions of travel as to highways, railroads, and interurban .connections between county seats in determining the question of removal of cases from one county to another. It is made plain in the present case that while the courthouse of Morris county is four miles farther in distance from the county of removal than is the courthouse in Titus county, yet by reason of an improved gravel highway it is under ordinary conditions much nearer in point of time required to travel between the given points, and that under bad weather conditions a detour is necessary which requires travelers from Camp county to go through Morris county to reach the county seat of Titus county. Under these circumstances we do not feel called upon to hold that the removal of the case to Morris instead of Titus county would be an error demanding a reversal, even had- the court acted upon appellant’s application for removal instead of undertaking to remove it on his own motion. There was and is now no contention that any prejudice or dangerous combination existed in Morris county against appellant which prevented him from having a fair and impartial trial.

Under the facts stated in the order for removal the statute relating to that matter appears to have been substantially complied with.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The case of Williams v. Planters’ & Mechanics’ National Bank of Houston (Tex. Civ. App.) 44 S. W. 617, is a decision by the Court of Civil Appeals at Galveston in which a writ of error was denied by the Supreme Court of this state. There was called in question the legality of the order of the district court of Harris county in granting an application for a change of venue, after the hearing, and transferring it to Galveston county instead of Port Bend county. The court in its order stated that ik appeared that the courthouse at Galveston county was, “for all practical purposes,” the nearest courthouse to that of Harris county. The use of the words “nearest for all practical purposes” may, we think, be equivalent to “most accessible.”

In the case of Shaw v. Cade, 54 Tex. 307, 311, the Supreme Court had before it the construction of the statute. The basis of the suit occurred in Galveston county. A motion to change the venue was granted, and the venue was changed to Harris county. On the call of the case in 'Harris county, a' motion was made and sustained, transferring the case to Chambers county, the Harris county district court acting upon the theory that the order changing the venue to Harris county conferred no jurisdiction upon that court for the reason that the courthouse in Chambers county was the nearest to that of Galveston county within the meaning of the statute. It had been developed in Galveston county that the distance between the courthouse at Galveston county and that in Chambers county, by air-line measurement, was 42 miles, and by the “usually traveled route” was 56 miles; that the Harris county courthouse was distant from the courthouse of Galveston county, by air-line measurement, 50 miles, and by the “usually traveled route” the same distance, 50 miles. On appeal the Supreme Court determined that the assumption of the district court of Harris county that it had no jurisdiction was wrong, and that in refusing to try the case and in removing it to Chambers county upon the ground stated it was in error. The Supreme Court, in ordering the reinstatement of the case in the district court of Harris county, said: “The opinion of the court is that'the nearest court house, in the meaning of the statute, is not necessarily the one nearest by geometrical measurement, but may be the one most convenient of access and nearest by the usually traveled route.”

The statutes governing the change of venue in the particular in question are alike in both civil and criminal cases. See Rev. St. 1925, art. 2172; Code Cr. Proc. 1925, art. 565. Disclaiming any attempt, by quotation or otherwise, to put into words the exact meaning of the term “nearest county” as contained in the statutes in question, we are confirmed in our opinion that the statutes are not so rigid as to require a reversal of the judgment upon the facts pertaining to the question in hand upon the present trial. The precedents are numerous to the point that 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 is made. Such is the holding of the Supreme Court in the cases cited and of this court in the case of Taylor v. State, 81 Tex. Cr. R. 347, 197 S. W. 196, 201, and others. That there is some degree of flexibility, that is to say, that the trial court has some discretion in the matter of deciding the place to which the venue should be changed, is obviously the holding of the Supreme Court of this state in the cases cited and of this court in the cases cited in the original opinion. The judicial interpretation of the statutes, in view of the subsequent re-enactment of them in the same language, may be regarded as reflecting the legislative adoption or sanction. See Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 812, 21 Ann. Cas. 656, quoting Black on Interpretation of Laws, p. 369, thus: “When the Legislature revises the statutes of the state, after a particular statute has been judicially construed, without changing that statute, it is presumed that the Legislature intended that the same construction should continue to be applied to that statute.”

The motion is overruled.  