Ex Parte McCormick , 129 Tex. Crim. 457 ( 1935 )

The respondents contend in their motion for rehearing, as understood, that inasmuch as the learned trial judge entertained the opinion that the publication of the testimony given upon the trial was reasonably calculated to impede or interfere with the due administration of justice, the relators were culpable. The good faith of the trial judge in entering the order is conceded, but his authority to punish the relators for refusing to abide his order is denied.

The decision in the present appeal advances no new principle or practice. The conclusion of this court, as expressed in the original opinion, is founded upon the Bill of Rights in which there is guaranteed the freedom of speech and liberty of the press. A speedy public trial by an impartial jury is guaranteed to persons accused of crime. The conclusion of this court is further supported by precedents, notably, the decision in Ex parte Foster, 44 Tex.Crim. Rep., to which reference is made in the original opinion. Emphasis, if needed, is found in other decisions of this court upon a like subject to that involved in the present appeal. Among such cases is Willis v. State, 81 S.W.2d 693.

The statute, Art. 560, C. C. P., vests the trial judge with power and wide discretion in the matter of change of venue. Formerly, if a proposed juror stated that he had formed an opinion from any source, his disqualification followed as a matter of law.

"Now, by express statute, an opinion so based is not a disqualification if the juror is willing, and believes himself able, to put aside any preconception of the case, and if the court sees no reason to doubt this." (Tex. Jur., Vol. 26, p. 767, sec. 203).

See Willis v. State, supra, and also Parker v. State,238 S.W. 943, in which case each of the judges of the Court of Criminal Appeals, in separate opinions, concurred in the above statement.

A further discussion of the motion for rehearing is pretermitted with the statement that the conclusion reached and stated in the original opinion has the concurrence and sanction of the members of the Court of Criminal Appeals.

The motion is overruled.

Overruled.