Baw v. State ( 1893 )

DAVIDSOH, .Judge.

— Controverting tbe motion to change tbe venue, tbe State filed affidavits of Green, Tevis, and Denman, attack ing tbe credibility and means of knowledge of Boclil and Nussbaum, appellant’s compurgators. Additional affidavits were filed by tbe State denying tbe truth of tbe facts set up in tbe motion to change venue and in tbe supporting affidavits, which were excepted to by appellant. Tbe exceptions were overruled. While such affidavits may not have been required by law, they did not impair tbe controverting affidavits of Green, Tevis, and Denman, and we can see no possible injury that could have accrued on account of this having been filed. Nor was it necessary that tbe district attorney, or some one representing the State, should have signed tbe controverting affidavits, though be may have done so with propriety bad be been cognizant of tbe facts stated. This may be done by any credible person. Dunn v. The State, 7 Texas Crim. App., 600; Willson’s Crim. Proc., secs. 2209, 2210.

Tbe refusal to change tbe venue was not error. Tbe great weight of the testimony adduced upon the trial of tbe motion negatives tbe existence of the prejudice alleged, and tbe evidence does not show tbe existence of tbe combination of influential persons set up. Under such state of case this court has invariably refused to disturb tbe ruling of trial courts refusing applications to change venue. Willson’s Crim. Proc., sec. 2212. Application for continuance was based upon alleged “excited condition” of tbe public mind, as well as for the testimony of certain named witnesses. “'Excited condition” is too vague to be considered, and, if fully stated as to details and facts, does not constitute ground for continuance. It might be considered in connection with motion for change of venue. Miller v. The State, 31 Texas Crim. Rep., 609.

If it be conceded that it might operate as a cause for continuance, tbe record does not show its probable truth when viewed from tbe standpoint of tbe motion for a new trial.

Tbe witnesses mentioned in tbe application were all present at tbe trial, one of whom testified in tbe case, and tbe remainder were not called on to testify. Tbe continuance was properly refused.

Tbe charge was correct. It submitted every issue suggested by tbe evidence, and favorably to tbe defendant. Tbe testimony fully supports tbe conviction.

Affirmed.

Judges all present and concurring.