Phipps v. State , 100 Tex. Crim. 607 ( 1925 )

Appellant was convicted in the district court of Bosque County of manufacturing intoxicating liquor, and his punishment fixed at two years confinement in the penitentiary.

The facts show appellant's presence a number of times at a place where a large still was located and operated for the manufacture of intoxicating liquor, and his participation therein.

The case originated in Somervell County and was transferred by the district judge of his own motion to Bosque County. When the case was called for trial in Bosque County appellant interposed a plea to the jurisdiction of the court on the ground that he was not present and consenting to the change of venue. In Littleton v. State, 91 Tex.Crim. Rep., the matter is discussed at length and authorities collated. Since the early case of Rothschild v. State, 7 Texas Crim. App. 519, it has been the doctrine in this State that it is not necessary that the accused be present when the order for change of venue is made in his case. Orders made by the court relative to change of venue are regarded as being preliminary to the trial and not a part of the trial itself. The matter of making an order so changing the venue of the court's own motion is addressed almost entirely to his discretion and may be made whether the accused consents or not. Appellant cites Butler v. State, 38 Tex.Crim. Rep., and Harris v. State, 150 S.W. Rep. 447. These cases are discussed by this court in the comparatively recent case of Haley v. State, 88 Tex. Crim. 649, and in so far as they conflicted with that opinion, were overruled.

We regret that we cannot agree with appellant in his contention that the evidence does not support the verdict. Appellant's first bill of exceptions complains of the overruling of his plea to the jurisdiction, and the remaining bill appears to be taken to a large part of the argument of the State's attorney, much of which must necessarily have been germane and cannot be considered by us as prejudicial without some showing other than as appears in the bill.

No error appearing, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.