
    HOWARD v. STATE.
    (No. 3985.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.)
    1. Cbiminal Law &wkey;>1144(6) — Appeal — Scope op Review — Presumptions—Change op Venue.
    In the absence of record showing to the contrary, it must be presumed that evidence introduced on application for change of venue, tending to show prejudice against the defendant, was wholly insufficient where the court overruled the motion, and the order cannot be reviewed by the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2740, 2757, 2901, 3021; Dec. Dig. &wkey;>1144(6).]
    2. Criminal Law <&wkey;134(2) — Change op Venue — Affidavits—Supfioiency.
    Where on hearing on the first application for change of venue the evidence disclosed that one of the two compurgators was wholly incredible under oath, it could not be said that overruling the second application for change on affidavits of the same persons was error, since Code Cr. Proc. 1911, art. 628, requires the application to be supported by the affidavit of the defendant and at least two credible persons.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 243, 251; Dec. Dig. <&wkey;>134 (2).]
    3. Criminal Law &wkey;>137 — Change op Venue —H e arin g — Denial.
    While the court must have before it the evidence to show that a compurgator making affidavit for change of venue was wholly incredible, it is sufficient if that evidence was adduced on a former hearing for a change of venue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 253; Dec. Dig. @=»137.]
    4. Criminal Law <&wkey;122 — Change op Venue —Second Application — Propriety.
    One seeking a change of venue should present, where possible, all of Ms grounds therefor in one application, although a second application cannot be denied where the evidence adduced on tie hearing of the first showed probable grounds for the second.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 254; Dec. Dig. &wkey;?122.]
    5. Ceiminal Law 622(1) — Triai^Severance —Duty of Court.
    Under Code Or. Proc. 1911, art. 727, where two defendants accused of the same crime each filed motions that the other be first tried, it is the duty of the court to order the trial of one to precede the other.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1380, 1382; Dec. Dig. &wkey;> 622(1).]
    6. Criminal Law &wkey;>364(6) — Evidence—Admissibility — Res Gestee.
    A statement made by one accused of burglary while imprisoned more than a month after the offense charged is not a part of the res gestee. „
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808, 817; Dec. Dig. <&wkey;> 364(6).]
    7. Criminal Law &wkey;>426 — Evidence—Admissibility.
    While the accused may show that another committed the offense charged, he cannot produce statements of a codefondant made to other persons showing that he was innocent, since Code Cr. Proc. 1911, art. 791, specifically declares that persons charged as principals cannot be introduced as witnesses one for another.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1011; Dec. Dig. &wkey;>426.]
    8.- Criminal Law <®=^721(3) — Conduct of Trial — Remarks of Attorneys — Comment on Failure of Accused to Testify.
    A remark of the prosecuting attorney, in a prosecution for burglary, that the accused on liis arrest failed to explain his possession of stolen goods, is not a comment on his failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. &wkey;721(3).]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Fletcher Howard was convicted of burglary, and he appeals.
    Affirmed.
    McCutcheon & Church, of Dallas, for appellant C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at two years’ confinement in the state penitentiary.

This is the second appeal of this case, the opinion on the former appeal being reported in 178 S. W. 508.

Appellant again contends that as the indictment was returned into the criminal district court No. 1 of Dallas county, the criminal district court No. 2 had no authority or jurisdiction to try the cause. The order transferring the cause is contained in the transcript, and, as this question was ruled on in the former opinion, we do not deem it necessary to discuss it again.

He again presents the motion to quash the indictment on the same grounds as those relied on in the former opinion. We have not changed our views of the law, and the court did not err in overruling the motion.

When the case was called for trial, appellant requested time to prepare and file a motion for change of venue. The court granted from 9 a. m. until 2 p. m. When the court convened in the afternoon, appellant presented an application for a change of venue on the ground:

“That there exists against him so great a-prejudice he cannot obtain a fair and impartial trial in Dallas county.”

This application was contested by the-state by sworn plea, and the court heard evidence on the application. After all the evidence was heard, the court overruled the application. The evidence heard on this application is not contained.in the bill, nor in-the record. Therefore we must conclude that the -evidence wholly failed to sustain the application. We cannot review the action of the court in the absence of the testimony heard.

As soon as the court overruled this application for a change of venue, appellant’s counsel stated he desired to present a second application, on the ground:

“That there was a dangerous combination against him instigated by influential persons by reason of which he could not obtain a fair trial.”

When this second application for a change of venue was presented, the court upon learning that it had been prepared at the same time as the first application, and signed by the same witnesses, and not presented at that time, but held out until the evidence on the first application had been heard and ruled on, refused to entertain the second application, alleging as reasons for refusing to do so:

“First, that after hearing the evidence on the first application he found that there did not exist in Dallas county such prejudice against the defendant as would prohibit him from obtaining a fair and impartial trial; second, that one of the compurgators, a negro by the name of Bert Morrow, was not a credible person and was totally unworthy of belief under oath.”

If the evidence on hearing the first application for a change of venue had shown the court that one of the compurgators, Bert Morrow, who signed both applications, was not a credible person and wholly unworthy of belief, we cannot say he erred in hot entertaining the second application. The statute requires (article 628) that the application must be supported by the affidavit of the defendant, and at least two credible persons, and it has been frequently held by this court that the application, which is supported by the affidavit of one credible person, is insufficient to present an issue for trial. O’Neal v. State, 14 Tex. App. 582;. Macklin v. State, 53 Tex. Cr. R. 197, 109 S. W. 145; Gibson v. State, 53 Tex. Cr. R. 349,. 110 S. W. 41.

In the O’Neal Case, supra, this court said:

“There was no error in the action of the court in striking out and refusing to consider the defendant’s application for a change of venue, tecause the application did not conform to the requirements of the statute. It was supported by the affidavit of but one other person than the defendant, whereas the statute requires the supporting affidavits of ‘at least two credible persons, residents of the county where the prosecution is instituted.’ * * * Where the statute is not fully complied with in an application for a change of venue, the application is fatally defective, and the court is under no obligation to consider it. Mitchell v. State, 43 Tex. 512.”

Of course, the court without evidence and without a contest would not be authorized to hold that a witness was not a ■credible person, but in this case the court had heard evidence on the application presented under the first subdivision of article 628, and, having heard it and ruled on it, he would be authorized to hold, upon presenting the second application, the compurgators being the same, that they or either one of them were not credible persons, if the evidence on the first application had so shown.

We do not wish to be understood as holding that a person cannot file a second application, if the evidence on the first application, based only on one ground of the statute, should disclose probable grounds for believing that grounds existed for filing an application under the second subdivision, or the appellant had learned such facts since filing the first application. The statute authorizes a change of venue upon either of the grounds. But we would say that the proper practice is to present both grounds in one application, if appellant is in possession of information at the time he files the first application that he has reason to believe that both grounds exist, and he should not, if in possession of the information, delay the orderly proceedings of the court by splitting the matter into two applications, one to be filed after the first has been heard and ruled on. However, this is a matter of procedure, and one should be denied no right the statute gives him, if he presents the matter properly to the court, and we only hold in this case that under the findings of the court on the evidence heard by him, which is not presented to us in the record before us, the court committed no error in refusing to hear the second application when it was signed but by one credible witness.

Appellant and one Dave Johnson were both indicted, charged with burglarizing a railroad car. Appellant filed an application ■that Dave Johnson be tried first. Dave Johnson, through his attorney, also filed an application, asking that appellant be first •tried. Article 727 of the Procedure provides for severance, and provides in the event the two defendants make such affidavits and cannot agree as to the order of trial, then the presiding judge shall direct the order in •which they shall be tried. As both defendants filed affidavits asking that the other be first tried, it became the duty of the court to designate the one to be first tried.

Dave Johnson, appellant’s codefendant, did not testify on this trial. By the bills .on file it appears that he has made conflicting affidavits, in one affidavit stating facts which would tend to exonerate appellant and show he was not guilty of the offense charged. Appellant offered to introduce this affidavit in evidence, and prove by Noah Roark what Dave Johnson had told him while confined in jail. This was not res gestse of the offense — the offense having been committed in November, 1914, while the affidavit made by Dave Johnson, which appellant called Mr. Roark to testify in regard to, was made about a month thereafter while Dave Johnson was in jail, charged jointly with appellant with having committed this burglary. While, since the rendition of the opinion in Dubose v. State, 10 Tex. App. 230, it is permissible for the person on trial to show that another committed the .offense with which he is charged by legal and competent testimony, yet this does not give one the right to introduce illegal and inadmissible testimony which might tend to show that fact. Article 791 of the Procedure specifically declares that persons charged as principals, whether in the same or different indictments, cannot be introduced as witnesses for one another, and in passing on this statute Judge White, in Long v. State, 10 Tex. App. 197, holds:

“If he cannot testify in person, how can he state facts to others and thereby enable them to testify to matters wholly derived from him? To permit this would be to abrogate the law. * * * No fact stated by or derived from him can, so long as the disability remains, be detailed as testimony by another or used as evidence.”

See, also, Smith v. State, 41 Tex. 354; Blain v. State, 24 Tex. App. 636, 7 S. W. 239; Wyres v. State, 74 Tex. Cr. R. 28, 166 S. W. 1150, and cases cited.

In another bill of exceptions appellant contends the prosecuting officer in his argument made an indirect reference to appellant’s failure to testify. The bill as approved by the court shows this clearly not to have been the case. Appellant’s counsel referred to instances when persons charged with crime had made explanations. Counsel for the state merely stated, in replying, that appellant when arrested, charged with this offense, made no explanation of the fact that he was helping to move the stolen property when arrested. This would not be a reference to his failure to testify.

This disposes of all the questions presented in the brief on file. While there are other bills in the record, yet they relate to matters which were passed on in the former appeal of this case, and we see no necessity to pass on them again, but merely refer to that opinion, 178 S. W. 508.

The judgment is affirmed.

DAVIDSON, J., absent. 
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