Cravey v. State , 23 Tex. Ct. App. 677 ( 1887 )

White, Presiding Judge.

Appellant’s application for change of venue was based upon both the statutory grounds named in Article 578, Code of Criminal Procedure, to wit, prejudice and a dangerous combination of influential persons. This application was resisted by the State, and, upon consideration of the evidence adduced, pro and con, the trial judge overruled the motion. As proof of a combination of influential persons, it was shown that the commissioners court of the county had appropriated a sum of money to aid in the prosecution of cattle and horse thieves generally, and had employed special counsel to assist in such prosecutions. No special combination or action of the court as to this particular defendant is shown.

Opinion delivered June 22, 1887.

A general combination of influential persons to suppress lawlessness and crime generally is not such a combination as is contemplated by the statute. The statutory combination is one which is formed with reference to and against the particular individual. Whatever may be said of the power of the commissioners court to employ special counsel to aid the regular prosecuting attorneys in the performance of their duties, it “ is too clear for argument or authority that prejudice can not be' predicated upon such fact,” any more than that such fact will establish “a dangerous combination of influential persons.”

But it is seriously complained that on the examination of witnesses as to the change of venue, the trial judge himself propounded certain questions to the witnesses. We see no error in this. It is the judge alone who is to hear and determine the issue, and we can see no reason why he should not take all such measures as will in his judgment, best enable him to determine it fairly and justly. We find no error in the action of the court on the proceedings for change of venue, nor can we say he committed an error or abused his discretion in overruling the motion.

There is, however, an error of omission in the charge of the court to the jury in this case. This case is a companion to the case of Mayfield v. The State, just decided, grew out of the same transaction, and is for the theft of the same animal. In this case, as in that, the prosecution proved contemporaneous thefts of other animals, which were found at the same time this animal was, and were returned to their legitimate owners. The court failed to instruct, limit and restrict the jury as to the objects and purposes of said testimony. This was fundamental error, necessitating a reversal of the judgment.

Other errors complained of are not likely to occur on another trihl. The judgment is reversed and the cause remanded.

Reversed and remanded.