Lawrence v. State , 117 Tex. Crim. 228 ( 1931 )

Appellant moves for rehearing upon two grounds, viz: that we erred in not upholding his contention that the venue was not proved in this case, and in giving effect to the statutory presumption where the question was not raised on the trial; also that we erred under the facts in this case as developed by the record, in reforming a judgment in a case in which conviction was had upon one count and the judgment and sentence followed a different count in the indictment. We have again examined the record with a view of ascertaining if the issue of venue was raised upon the trial. We find that appellant presented a requested charge for a peremptory instruction of acquittal, but in the charge he sets out no ground or reason for such request. In his motion for new trial he does set out that the reason he presented such request for said peremptory instruction was that the venue was not proved. This court has often held that unless the issue of venue was raised prior to the filing of the motion for new trial, the presumption in favor of the proof of venue will be indulged. Tullos v. State, 99 Tex.Crim. Rep., 270 S.W. 1021; Brown v. State,71 Tex. Crim. 353, 162 S.W. 339; Thompson v. State,72 Tex. Crim. 6, 160 S.W. 685.

The rule uniformly adhered to by this court for many years has been that of reforming judgments where there are two counts in the indictment and a verdict is rendered specifying that the accused is found guilty of the offense charged in one, but the judgment and sentence, or either, follows the other count. The case of Small v. State (Texas Crim. App.), 38 S.W. 798, cited and relied upon by appellant in his motion, was overruled in Pearson v. State, 96 Tex.Crim. Rep., 257 S.W. 895.

The motion for rehearing will be overruled.

Overruled.