
    PHIPPS v. STATE.
    (No. 8843.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.
    Rehearing Denied May 20, 1925.)
    1. Criminal law &wkey;l36 — Not necessary that accused be present when order changing venue was made.
    It is not necessary that accused be present when order for change of venue is made, such order being regarded as preliminary to trial and not part of trial itself. .
    2. Criminal law <&wkey;l2l — Order changing venue on court’s own motion may be made whether accused consented or not.
    Order changing venue on court’s own motion is addressed almost entirely to court’s discretion, and may be made whether accused consented or not.
    On Motion for Rehearing.'
    3. Criminal law <&wkey;l 144(18) — It will be presumed that court correctly overruled motion for new trial, where evidence on which decision is based is not in bill of exceptions.
    Where evidence on which court based its decision in overruling motion for new trial on ground that accused was not present when order for change of venue was made was not preserved by bill of exceptions, it will be presumed that court correctly overruled motion for new trial.
    Appeal from District Court, Bosque County ; Irwin T. Ward, Judge.
    Aleck Phipps was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    Levi Herring, of Fairfield, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Bosque county of manufacturing intoxicating liquor, and his punishment fixed at two years’ confinement in the penitentiary.

The facts show appellant’s presence a number of times at a place where a large still was located and operated for the manufacture of intoxicating liquor, and his participation therein.

The case originated in Somervell county, and was transferred by the district judge of his own motion to Bosque county. When the case was called for trial in Bosque county, appellant interposed a plea to the jurisdiction of the court on the ground that he was not present and consenting to the change of venue. In Littleton v. State, 91 Tex. Cr. R. 206, 239 S. W. 202, the matter is discussed at length and authorities collated. Since the early case of Rothschild v. State, 7 Tex. 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 to change of venue are regarded as being preliminary to the trial and not 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 State v. Butler, 38 Tex. 560, and Harris v. State, 71 Tex. Cr. R. 463, 160 S. W. 447. These cases are discussed by this court in the comparatively recent case of Ex parte Haley, 88 Tex. Cr. R. 649, 228 S. W. 208, and in so far as they conflicted with that opinion, were overruled.

We regret that we cannot agree with ap-pellent in his contention that the evidence does not support the verdict. Appellant’s first bill of exceptions complains of the overT ruling of his plea to the jurisdiction, and the., remaining bill appears to be 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.

On Motion for Rehearing

Appellant renews his complaint oí the change of venue, and his insistence that he was notspresent when the venue was changed. The matter was disposed of by us in our former opinion, upon the proposition that this was not a complaint available. We cited authority. Our attention is now called to a fact which was not adverted to in former opinion viz., that the order of the court changing 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 trial. The order of the court overruling said motion recites that “the court having heard said motion and the evidence thereon submitted, etc., is of opinion that same should be overruled.” No evidence having been preserved by any bill of exceptions and presented to us, we are compelled to presume the correctness of the court’s action upon the evidence 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. 
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