
    McNEAL v. STATE.
    (No. 10289.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1926.)
    Criminal law <&wkey;l26(2) — Overruling application for change of venue, in prosecution for assault to rape, in view of public prejudice, held error.
    In prosecution for assault with intent to rape, overruling application for change of venue held error, in view of condition of public sentiment shown against defendant.
    Commissioners’ Decision.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    George W. McNeal was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    See, also, 102 Tex. Or. It. 271, 277 S. W.' 1076.'
    David E. O’Fiel and Howth, Adams & Hart, all of Beaumont, for appellant.
    Marvin Seurlock, Co. Atty., of Beaumont, and Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the'State.
   BA,HER, J.

The appellant was convicted in the district court of Jefferson county for the offense of assault with intent to’ rape, and his punishment assessed at 25 years in the penitentiary.

The appellant was convicted of assault With intent to rape upon a little girl about 11 years of age in the city of Beaumont. This is the second appeal; the first will be found in 101 Tex. Cr. R. 114, 274 S. W. 981, where a sufficient statement of the facts is given.

On account of the voluminous nature of the record, we will not attempt to discuss specifically the many issues raised on this appeal, and the disposition we have made of this ease precludes the necessity of discussing the complaints made by appellant to the refusal of the judge to allow him time for examination of the charge and filing of objections thereto, and to the refusal to allow him, when his motion for new trial was first set for hearing, to introduce the jurors subpoenaed to support his allegations as to the alleged misconduct of the jury, and his objections to the closing argument of the district attorney to the jury.

The appellant in due time filed his motion for change of venue, and in support thereof introduced about 42 witnesses, representative citizens of different vocations and from different sections of the county, all of whom, with the exception of about two or three, testified, in effect, to having heard this case discussed and that in their opinion, on account of same being prejudged and the prejudice existing, the appellant could not get a fair and impartial trial in said county. The appellant also introduced clippings from different daily papers, published in said county, carrying full accounts of the former trial of this case, and one of said dailies, in particular, seems to have carried a detailed and minute account of every transaction that occurred during the trial, including the testimony of the witnesses, the statements of the court, the statements of the lawyers, the rulings of the court, and the verdict announcing the death penalty. It further appears that before the former trial, at the instance of the district judge, the appellant was moved from the jail in Beaumont and placed in the Harris county jail for his personal protection. The state contested the motion to chánge the venue, and, in rebuttal of the appellant’s evidence, introduced, testimony from 20 witnesses, who testified, in effect, that in their opinion the appellant, could get a fair trial in Jefferson county. However, it was disclosed on cross-examination that some of the said witnesses did not know whát the public sentiment was concerning this matter, and about 14 of them testified on cross-examination .either that they based their opinions upon the character of the-citizenship in Jefferson county, ‘or admitted that they had heard the case discussed and that what they had heard was against the appellant. It further appears that, after the court had overruled the motion to change the venue and counsel were proceeding to select a jury, out of 130 veniremen and talesmen, it developed that 60 were excused upon the grounds of being biased, prejudiced, or having opinions which would influence their verdict, and 6 more had formed opinions. As to others, who were excused for other reasons, it was not developed from them as to what they had heard concerning the facts of the case. After the voir dire examination of the veniremen and talesmen, appellant renewed his motion to change the venue, which the court again overruled.

In view of the fact that it is disclosed that the attendance upon -the former trial was very large, and that appellant’s punishment was fixed at death on that trial, and that, during the argument of the district attorney ■in the instant case, when he was, in effect,' complimenting the father of the prosecutrix in permitting the law to deal with the case instead of taking it summarily into his hands, he was applauded from the courtroom, and furthermore, in view of the enormity and seriousness of the charge against the appellant, in connection with the other matters herein discussed, we are forced to the conclusion that the trial judge was in error in overruling the application for a change of venue. The case of Stovall v. State, 97 Tex. Cr. R. 71, 260 S. W. 177, opinion by Judge Hawkins, wherein the facts were somewhat similar as to the condition of public sentiment .and as to the witnesses introduced, pro and con, on the motion to change the venue, is we think ample authority for the conclusion we have reached in the instant case.

, Nor the error above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of. the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      ®=?For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes
     