Davis v. State , 120 Tex. Crim. 114 ( 1930 )

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.

Two witnesses for the state testified that appellant sold whisky to the party named in the indictment. Appellant did not testify in his own behalf. His wife and other witnesses admitted the presence of the purchaser in appellant's home, but denied that appellant sold him any whisky.

Bill of exception No. 1 is concerned with the refusal of the trial court to change the venue. It was averred in the application that there existed in Brown county so great a prejudice against appellant that he could not obtain a fair and impartial trial. It appeared that there had been numerous raids made by the sheriff's department in which a large quantity of intoxicating liquor had been seized. Many indictments had been returned by the grand jury. The sheriff had been commended for his effort to enforce the liquor laws in a statement signed by citizens of Brownwood and published in the Brownwood papers. The papers had given a great deal of publicity to the effort on the part of the sheriff to enforce the liquor laws, and had called upon the good citizenship to co-operate with him. Accounts of the raids were carried in the papers, as was the charge of the district judge to the grand jury, wherein he commended the officers for their effort to enforce the liquor law. Also, there was carried in the papers the statement that some of the officers had been threatened and attacked by bootleggers. A controversy between the sheriff's department and the police departmet of Brownwood, wherein the sheriff charged that he received no co-operation from the police department, and wherein the chief of police denied such charge, was given publicity in the papers. Several witnesses testified that bootlegging had become bad in the county, and that the indignation of the good citizenship had been aroused. These witnesses testified that in their opinion appellant could not receive a fair and impartial trial in Brown county. Witnesses for the state testified that in their opinion appellant could receive a fair and impartial trial. They said that the good citizenship of the county wanted the liquor laws enforced, but that there was no excitement or indignation prevalent throughout the county. It appears that the population of Brown county is approximately 26,000, 16,000 of such number residing in the city of Brownwood. Very few of the witnesses testifying on the hearing were acquainted with appellant. It seems to have been the theory of appellant that no person charged with a violation of the liquor laws could receive a fair and impartial trial in Brown county, and that by virtue of the co-operation on the part of the citizenship with the sheriff's department in enforcing the liquor laws, great prejudice had arisen against appellant's case. It appears that some of the good citizens had voluntarily donated sums of money to the sheriff in order that he might employ extra help to be used in detecting violations of the liquor laws. As we understand the matter, these donations were made by a small number of men residing in the city of Brownwood.

The testimony pro and con presented conflicting theories. It is the rule that if conflicting theories as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory, it being his duty to weigh the evidence. A judgment denying the application will not be disturbed on appeal unless it be made to appear that the trial court abused its discretion. McNeely v. State, 104 Tex. Crim. 263,283 S.W. 522; Shelburne v. State, 111 Tex. Crim. 182,11 S.W.2d 519. We are unable to reach the conclusion that the record reflects an abuse of the discretion vested in the trial court.

The remainder of appellant's bills of exception were filed too late. The court adjourned on the third day of August, 1929. The bills of exception were filed on the thirtieth of September, 1929. No extension of time for the filing of the bills was granted by the trial court. Article 760, subd. 5, C. C. P. allows thirty days after the day of adjournment of court for filing bills of exception, provided the trial term is less than eight weeks. There being no order in the record extending the time, and said bills not having been filed within thirty days after the adjournment of court, we are compelled to hold that they were filed too late. Mann v. State, 102 Texas; Crim. Rep., 210, 277 S.W. 1085.

We find in the record some exceptions to the court's charge. It is recited that said exceptions were duly presented to the trial court before the main charge was read to the jury, but such statement is not authenticated by the trial court. Hence, the exceptions are not entitled to consideration.

No error appearing, the judgment is affirmed.

Affirmed.

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.

ON MOTION FOR REHEARING.