
    GONZALES v. STATE.
    (No. 3512.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Indictment and Information <@=>86 — Venue — Offense Triable in Different County.
    An indictment for a crime which is tried in a county other than that in which the offense was committed, but in the same judicial district, as permitted by statute, should charge the commission of the offense in the county where it actually occurred, not in the county where the offender is to be tried.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. <@=>86.]
    2. Criminal Law <@=31101 — Appeal—Statement of Pacts — Pauper Defendant.
    .Where a pauper defendant, convicted of a capital crime, secured an order for the preparation of a statement of facts by the official stenographer, but the statement was not furnished, and he then, within the time allowed, wrote out a statement from memory, which the trial judg'e did not approve, the conviction will be reversed, and the cause remanded.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. <@=>1101.]
    Appeal from District Court, Atascosa County; P. G. Chambliss, Judge.
    Jacinto Gonzales was convicted of crime and sentenced to death, and he appeals.
    Reversed and remanded.
    David C. Brown, of Jourdanton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of rape and given the death penalty.

The record is before us without a statement of the facts or bill of exceptions. The indictment charged the rape to have been committed in Atascosa county. It seems from the record before us that the offense was committed in Live Oak county, which was in the same judicial district as Atascosa county. Under the circumstances stated in the statute, the county of Atascosa might have jurisdiction to try the offense, although it was actually committed in Live Oak county ; this being rape. The statute authorizing this has been held constitutional by various decisions, commencing with Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780. The court instructed the jury on that question as fallows:

“The jury are further instructed that the county of Atascosa is in the Thirty-Sixth judicial district of Texas, and that the county of Live Oak is in the Thirty-Sixth judicial district of Texas; therefore if, from the evidence, you find that the crime of which the defendant stands accused was committed in Live Oak county instead of Atascosa county, and you believe and find, beyond a reasonable doubt, from the evidence, that the defendant was the person who committed it, the proof of the venue will be sufficient to warrant you in finding him guilty as charged in the indictment.”

Motion in arrest of judgment was made which, was also treated by the court' as a motion for new trial, presenting the error of the court in trying the case in Atascosa county. The indictment does not charge the offense as having been committed in Live Oak county as a prerequisite and reason why Atascosa county would have jurisdiction on the question of venue. It seems the authorities, since the case of Chivando v. State, 15 Tex. App. 330, have held, where a county was attached to another county for judicial purposes, it is necessary to allege in the indictment that fact in order to give jurisdiction in the county to which the other county is attached. This was followed in Miles v. State, 23 Tex. App. 410, 5 S. W. 250. Because the indictment in those cases did not allege that the county in which the offense was committed was attached to the county of venue by legislative act, it was insufficient, and the cases were reversed. In Mischer’s Case, supra, that rule was followed with reference to the rape venue statute. If this rulo has been changed by the decisions, the writer has overlooked it. The general rule where not otherwise fixed by statutory enactment, is that the county in which the offense is committed alone has jurisdiction. The statute may change this order, and in many cases has done so. We notice this in passing on the case, so that upon another trial this rule of law will be observed.

It seems the case was tried about the adjournment of the term of court. Proper orders were taken and entered, first, giving 60 days in which to file statement of facts and bills of exception, then subsequent 30 days added, but appellant failed to secure a statement of facts and bills of exception. The showing made in this court is uncontroverted that appellant did what he could to obtain both the evidence and the bills of exception. Counsel were appointed to defend him ; it is a death penalty; being a pauper, he filed his oath to the effect that he was unable to pay the necessary money to secure the statement of facts. The court ordered the statement of facts máde by the stenographer,' which was not done. Appellant, through his counsel, urged the matter, but the 90 days elapsed, and he failed to get a statement of the facts or bills of exception. In the meantime, using full diligence, he, from memory, made out what he believed a fair statement of the facts and sent same to the district judge,'who was in another county in the district. This statement of facts was not returned approved by the trial judge, and, so far as the record is concerned, was not returned nor filed. This was handed the trial judge in time for his disposition before the expiration of the 90 days. Under the recent case of Burden v. State, 70 Tex. Cr. R. 349, 156 S. W. 1196, this judgment will have to be reversed, as it is brought within the rule there laid down; perhaps the showing in this case is even stronger than was the showing in that case.

The judgment is reversed, and the cause remanded. 
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