
    COX v. STATE.
    (No. 6310.)
    (Court of Criminal Appeals of Texas.
    Oct. 5, 1921.)
    1. Criminal faw <©=>134(3) — Affidavit for change of venue to be granted, unless application is controverted.
    The presentation of an application for change of venue, properly verified, makes it incumbent on the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion.
    2. Criminal law <&wkey;l 150 — Ruling on change of venue reviewable, where facts are before ap-peliate court.
    The discretion exercised by the trial court under Code Cr. Proc. 1911, art. 633, as to controverted applications for change of venue, will be reviewed by the court on appeal, where the facts are brought before it.
    •3. Criminal law <&wkey;!34(l) — Prejudice requiring changing of venue not inferable alone from publications.
    The inference of prejudice requiring a change of venue is not to be drawn from the fact alone that newspapers published in the vicinity have contained nows articles descriptive of the offense or editorials denunciatory 'of the accused.
    4. Criminal law <&wkey;134(l) — Evidence of publications held relevant on prejudice, requiring change of venue.
    Evidence of newspaper publications denun-ciatory of offenses alleged to have been committed by accused, and their circulation, are relevant on the question of prejudice, requiring change of venue. -,
    5. Criminal law <&wkey;!34(i)— Burden not on accused to show fair triai impossible from prejudice shown.
    Burden was not on defendant, who produced evidence showing existence of prejudice against him, to show that if was such as to render a fair trial impossible.
    6. Criminal law <&wkey;126(1)— Source of prejudice requiring change of venue immaterial.
    If prejudice exist against a defendant, affecting right to change of venue, its source was immaterial, and might grow out of the offense charged, or accusations relating to former conduct.
    7. Criminal law &wkey;>9l4 — Facts held to show abuse of discretion in refusing change of venue, requiring new trial.
    Where accused and a companion were charged with assault with intent to rape, un-controverted evidence on application for change of venue for prejudice, showing that a year before lie had been acquitted of murder, and that a political campaign for office of district attorney followed, in which his trial and justice of acquittal were made an issue, and a daily paper sought to convince the public that the district attorney was not worthy of re-election, held to show abuse of discretion in refusing the application, requiring a new trial; it also appearing that defendant’s companion had in the same county, about the same time, on practically the same evidence, been convicted of misdemeanor, while accused was convicted of felony, and his punishment fixed at a long term in the penitentiary.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    R. G. Cox was convicted of assault with intent to rape, and appeals.
    Reversed and remanded.
    S. B. Ehrenworth and Garrison, Pollard, Morris & Berry, all of Houston, and C. L. Black, of Austin, for appellant.
    E. T. Branch, Dist. Atty., of Houston, and R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Adjudged guilty of an assault with intent to rape, appellant is condemned to confinement in the penitentiary for 10 years. A companion case is that of Robert Mooring, 234 S. W. 70, affirmed on this date.

The details of the transaction are not materially different from those revealed in Mooring’s Case. The two young men and two young girls, after meeting at a public dance, went riding in an automobile, and upon reaching a point .several miles from the city of Houston, each of the young men made an assault upon his female companion. Resistance and outcry were made, attracting the’attention of a resident, who interfere^, taking charge of the girls; appellant and Mooring returning to the city.

The description of the assault given by the prosecutrix, Jonetta Crenshaw, was, in our judgment, sufficient to support the conviction. She said that appellant, who was ’driving the car, after turning out the lights, put his hands upon her, and prevented her from getting out of the car, choked her, tore her clothes, and, insisting that he was going to accomplish his purpose, put his hands on her person; that she screamed, and continued to scream until Mr. Ulrich came to her aid.

Appellant claimed that he was induced by the conduct’of the prosecutrix to believe that his familiarity with her would meet with no objection, and that he had no intent to force her submission. He detailed a state of facts which, if believed, might have reduced his offense to aggravated assault. A motion for change'of venue upon the alleged existence of prejudice was made in due time. The means of knowledge of the compurgators was controverted. The appellant introduced evidence; the state did not.

The evidence disclosed that, about a year antecedent to his trial, appellant had been tried for murder and acquitted; that a political campaign followed, in which the manner of his trial and the justice of his acquittal were featured in a spirited race for district attorney. The incumbent of this office was opposed by another, who, in his speeches and by the circulation of printed matter, sought to convince the voting public that the incumbent was unworthy of reelection, citing appellant’s trial as evidence. The controversy continued for some six months. The cause of the opposing candidate was espoused by a daily paper published in the city of Houston and circulated throughout the county, having a large circulation and being read, according to the evidence, daily by about 100,000 people. Two or three thousand copies of some issues of this paper, containing references to the appellant’s case, were obtained and circulated throughout the county by the friends of the opposing candidate. In various issues of the paper appellant’s trial was described. In some of the issues the speeches of the opposing candidate were reproduced, and there were published statements of others to the effect that appellant, in another county, had been guilty of felonies; that he bore a bad reputation. It was shown that a brother of the deceased was a man of influence in Houston, occupying a responsible position in the public service: that he was bitter in his denunciation of the result of the trial of the appellant. It was also shown that labor organizations of the city sympathized with the prosecution, criticised the acquittal, and claimed that the appellant should have been convicted of murder.

Upon the happening of the event upon which this prosecution rests, an account of it was carried in the press, and appellant’s identity as the man who had previously been charged with murder was disclosed. Most of the witnesses gave the opinion that there existed against the appellant such prejudice as precluded the probability of obtaining a fair trial. Those most unfavorable to him tended to sustain the truth of his motion. From one of these we quote:

“In a county of this size I think it is possible he can get a fair trial, but I do not think it is probable. I believe there is still a fixed prejudice against him in this county.”

The presentation of an application for change of venue, properly verified, makes it incumbent upon the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion. Moore v. State, 46 Tex. Cr. R. 57, 79 S. W. 565; Carr v. State, 19 Tex. App. 656, 53 Am. Rep. 395; Davis v. State, 19 Tex. App. 222; Logan v. State, 39 Tex. Cr. R. 574, 47 S. W. 645; Lemons v. State, 59 Tex. Cr. R. 304, 128 S. W. 416.

The application may be controverted by an affidavit of some credible person attacking the credibility of the compurgators or their means of knowledge. Code Crim. Proc. art. 633. When so controverted, the statute says:

“The issue thus formed shall be tried and determined by the judge, and the application granted, or refused, as the law and the facts shall warrant.”

The appellant presented a number of witnesses, who testified to facts within their knowledge, upon which they based an opinion coinciding with the averments in the application. It was his duty, as said in the statute, to try the issue and determine it according as the law and the facts should warrant. The discretion to refuse it was not an arbitrary, b.ut a judicial, one, and, the facts that were before the court having been brought here, the duty rests upon this court to determine whether, in the proper exercise of judicial discretion, the application should have been denied. It is a general and wholesome rule,- we think, which declares that the inference of prejudice, requiring a change of venue, is not to be drawn from the fact alone that newspapers published in the vicinity have contained news articles descriptive ot the offense or editorials denunciatory of the accused. Downs v. State, 111 Md. 241, 73 Atl. 893, 18 Ann. Cas. 789, and notes; Ruling Case Law, vol. 27, p. 816, § 36. Evidence, however, of such publications and their circulation, is generally received and considered relevant. People v. Suesser, 132 Cal. 631, 64 Pac. 1095; Com. v. Ronemus, 205 Pa. 420, 54 Atl. 1095; Downs v. State, supra. This rule has been applied in this state in Gallaher v. State, 40 Tex. Cr. R. 296, 50 S. W. 388; Faulkner v. State, 43 Tex. Cr. R. 311, 65 S. W. 1093; Cortez v. State, 44 Tex. Cr. R. 160, 69 S. W. 536; Fleming v. State, 62 Tex. Cr. R. 653, 139 S. W. 598.

The publications which were described in evidence and introduced were not confined to giving to the public news, but were pressed with vigor for months by a widely-read publication, in urging that the offense of the appellant was so rank that a public official who had suffered his acquittal should be discredited and retired. It published letters purporting to come from the former abode of the appellant, declaring that in another county he had committed felonies of the most revolting type. It carried in its columns excerpts from the speeches of those who sought to supplant the district attorney because ot his failure to convict the appellant of murder, and by its editorials advocated the election of the opposing candidate, basing its advocacy, in part, upon the -failure to convict the appellant of murder. Articles denuncia-tory of the offense charged to appellant were not confined to the paper mentioned, but appeared in another of wide influence and circulation. Reliance is not had upon newspapers alone, however, but in connection with them notice must be taken of the evidence that speeches were made through the county, in which the appellant’s misdoings were the subject o.f comment, and the miscarriage of justice in his acquittal urged as an element in the political campaign, and in which his reputation in the counties in which he had previously lived was assailed. The interest of the labor organizations; according to the evidence, had been aroused against the appellant, and their activity enlisted in the political campaign, by reason of the homicide with which he had been charged. With these facts, adduced from witnesses whose credibility was not questioned, controverted by no proof from the state, was the decision of the trial judge the proper exercise of judicial discretion? The testimony of each of the witnesses went to sustain the allegations in the motion.

The burden was not upon the appellant to show that the prejudice against him, or against his case, was such as to render a fair trial impossible. If there was such existing prejudice as rendered it improbable that, pursuing the methods provided by law, a fair and impartial trial of his case could be had, he was entitled to have his application granted. Randle v. State, 34 Tex. Cr. R. 59, 28 S. W. 953. If there existed such prejudice against the appellant, its source was immaterial. It might have grown out of this- offense, or out of false accusations relating to his former conduct. It is not essential that it grow out of the immediate case. If it existed to the degree contemplated by the statute, the law imposed mandate that the case be transferred to a locality unaffected by such prejudice. Barnes v. State, 42 Tex. Cr. R. 297, 59 S. W. 882, 96 Am. St. Rep. 801; Randle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953; Gallaher v. State, 40 Tex. Cr. R. 296, 50 S. W. 388.

In Gallaher’s Case, 40 Tex. Cr. R. 296, 50 S. W. 388, from the city of Galveston, though the evidence on the issue of prejudice was conflicting, that supporting the motion was held of such weight that its disregard was treated as an abuse of discretion. In Faulkner’s Case, 43 Tex. Cr. R. 320, 65 S. W. 1093 from Dallas county, the evidence was one way, and supported the theory of prejudice rendering a fair trial improbable. The action of the trial judge in refusing a change of venue was held an abuse of discretion; so in Barnes v. State, 42 Tex. Cr. R. 297, 59 S. W. 882, 96 Am. St. Rep. 801, Randle v. State, supra, and Fleming v. State, 62 Tex. Cr. R. 653, 139 S. W. 598.

The facts in the'case of Fleming v. State, supra, are analogous. Fleming was an officer in a bank, which failed, and was charged with a criminal offense in connection with the management of the affairs. The matter was discussed in the press and in a political campaign between the contending candidates for the office of county attorney. The indictment and conviction followed. In holding that the venue should have been changed from Dallas county, the court said:

“The papers had taken up the matter and discussed it, and these papers were shown by .this record to have a wide circulation all over the county. These matters had become household words in every nook and corner of the county. It is to be deprecated that things of this sort should be injected into local politics. Such proceedings are conducive to the mob spirit. A party who is charged or suspected of violation of the criminal laws is entitled, wherever a conviction is sought, to a fair trial before an impartial jury.”

In the instant case, the learned trial judge, in qualifying the bill, discloses that, after the evidence was closed, he interrogated the members of the venire and urged them to disclose, without reserve, any feeling of bias, or prejudice, or opinion, and that but one declared that he had an opinion; the others remaining silent. The privilege of questioning the parties was extended, but no questions were asked on the matter of change of venue. The jury was obtained from the original panel for the week of 36 men.

The evidence adduced upon the motion for change of venue, and not the qualification ot the trial court, is the measure. Faulkner v. State, 43 Tex. Cr. R. 320, 65 S. W. 1093. In Dobbs’ Case, 51 Tex. Cr. R. 632, 103 S. W. 918, the qualification, not different in substance from that in this one, was held by the court not to overcome the evidence in support of the motion for change of venue introduced by the appellant; none being produced by the state, this court said:

“The explanation of the trial court nowhere contravenes the undisputed testimony of the witnesses, or at least it does not deny that the witnesses testified as contained in the bill of exceptions.”

And further:

“While it is true the trial court certifies that they readily secured a jury out of something over 100, yet the record is replete with the suggestion, and same is enforced upon our minds, that there was so great a prejudice in Camp county against appellant as to lead to a satisfactory conclusion that appellant, in all human probability, could not get a fair and impartial trial in said county.”

The court’s qualification, even if considered as evidence is not sufficient to outweigh the sworn testimony of witnesses, and the effect of the documents that were introduced in evidence. Pertinent remarks are found in Randle’s Case, supra, in which it is said:

“The law authorizing a change of venue proceeds upon t;he fact that, notwithstanding the most searching questions may be applied to the juror in regard to his bias or prejudice,” or opinion, “still there may be in the county such a prejudice existing as to render it improbable that the defendant could receive a fair and impartial trial. If it be conceded that all obnoxious jurors could be kept off the jury by being questioned in regard to causes for challenge, then it would seem the law providing for a change of venue would be useless, and should have no place in our procedure, and the provisions of the Constitution would be without purpose, reason, or object — ‘unto the Jews a stumbling block, and unto the Greeks foolishness.’ ”

In the case before us, the evidence of all the witnesses who testified was to the effect that the prejudice contemplated by the statute existed and permeated the county. They detailed facts supporting this opinion, which, considered in the light of precedents and experience, cannot be said to be an insufficient predicate to the opinions expressed. Neither the evidence establishing the fact nor the opinions based thereon were controverted by any testimony. It was all one way; it came from documents, and from the lips of admittedly credible witnesses; it contained no such inherent weakness as warranted its disregard.

Appellant’s companion was tried in the same county, about the same time, on the same issues, with practically the same evidence before the jury. He had been accused of no previous offense. The incidents of no past trials of his had become the subject of debate or comment in a political campaign. Upon the merits of his case the jury found him guilty of misdemeanor. Appellant was convicted of a felony, and his punishment fixed at a long term in the penitentiary. The failure to change the venue was the subject of complaint in the motion for new trial. The trial and result of the companion case was brought to the attention of the trial court. In the light of’it, and in view of the heavy verdict, and the prejudice shown, without controversy, to have existed, we are of the opinion that a new trial should not have been denied. Barnes v. State, 42 Tex. Cr. R. 297, 59 S. W. 883, 96 Am. St. Rep. 801.

The judgment is reversed, and the cause remanded. 
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