Haley v. State

Appellant's motion for rehearing most ably and ingeniously urges various questions. It is insisted that no sufficient recognizance was entered into by appellant at the time the venue of his case was changed from Kaufman to Dallas County. Looking to the record, we find no such question in any way raised upon the trial below. There was a plea to the jurisdiction there made, and overruled, which we will notice later, but no reference occurs therein to the question of recognizance. There appears in the record a motion by appellant — granted by the trial court — requiring the clerk of the District Court of Kaufman County, to send to the clerk of the trial court a correct transcript of the proceedings had in reference to the case in Kaufman County, but further than to plead to the jurisdiction of the lower court, upon the ground that the order of the District Court of Kaufman County, in changing the venue herein, incorrectly designated in the Dallas County Court, to which the case was sent, no objection was raised to the jurisdiction of the trial court. In this condition of the record, no error in the recognizance is brought before us for review. After the affirmance of this case, a certified copy of the transcript of the proceedings in the Kaufman County District Court was filed with our clerk, showing the recognizance entered into by the appellant in that court. Replying thereto, and at a later day, the clerk, and district judge of Kaufman County, also filed papers, showing that the recognizance made by appellant at the time of the change of venue, bound him to appear before the same court to which the venue was changed. If we consider one of these attacks upon the correctness of the record, we should consider both. We think the trial court the proper place to present such objections, so that if there be error in the recognizance, it might be then corrected. Thompson v. State, 35 Tex. Crim. 505. As said by Judge Hurt, in Caldwell's case, 12 Texas Crim. App., 316, in discussing a different question: "Will this court reverse a judgment for these irregularities, when the defendant made no objection at the time, taking his chance of being acquitted by this jury thus sworn, and holding in reserve this matter to be used in his motion for new trial, and, on failure there, to be used in this court as ground for reversal of the judgment? We think not."

It is also urged that this case should be reversed because the District Court of Kaufman County, in its order changing the venue, designated the court to which the case was sent, as "Criminal District Court, Place No. 2, Dallas County," it being stated that the name given said court by the statute creating same, was "Criminal District Court Number Two, Dallas County," and that the use of the word "Place" in the order changing the venue, would be such misdescription of the court to which the case was sent, as to be fatal. When this case was called for trial in the court below, a plea to the jurisdiction was presented, based on the contention now under discussion. The same was overruled, the trial court explaining in his qualification to the bill of exceptions, that he regarded the word "Place" as surplusage. It is not contended that the Criminal District Court No. 2, of Dallas County, in which the instant trial was had, was not a court of competent jurisdiction to try a case of this character, and we are met at the threshold of the consideration of the question of alleged error in overruling the plea to the jurisdiction, by the well settled rule in this State, that such pleas in cases whose venue had been changed, will not be entertained by the court to which the case was sent, or by this court, unless the matter complained of was preserved by proper bill of exceptions taken in the court a quo. In the Krebs case, 8 Texas Crim. App., 1, it appears from the information, that when his case was called in the county to which it had been sent on a change of venue, the accused presented his sworn plea to the jurisdiction upon the ground that he was jointly indicted with others; that there had been no severance, and that he was not a party to and had never applied for, or consented to, a change of venue in his case, and that of right his case was still pending in the district court of the county from which it was sent. This Court held that the correctness of the ruling of the trial court upon the plea to the jurisdiction, would not be inquired into, because no objection was urged, and no exception taken by the accused in the District Court of the county from which the case was sent originally. Rothschild v. State, 7 Texas Crim. App., 519; Brown v. State, 6 Texas Crim. App., 266; Preston v. State, 4 Texas Crim. App., 186. No exception to the order entered was made in the district court of Kaufman County.

However, considering the matter for a moment, we feel inclined to approve certain expressions found in the opinion of Petty v. People, 8 N.E. 304, wherein the Supreme Court of Illinois, discussing a somewhat similar question, says "The object of naming the court is obviously to enable the accused to know of a certainty before which tribunal he must appear. This would seem almost indispensable where two or more courts exercising the same jurisdiction are in session at the same time and place; but, after all, if in any case sufficient appears in the recognizance to enable the accused to know, beyond a reasonable doubt, the tribunal before which he is required to appear, the object of naming the court in express terms is fully answered, whether so named or not. Such, we are of opinion, is the case here. We are satisfied the accused has not been misled by reason of the alleged defect in the recognizance, and to allow the objection to prevail would be, in our judgment, to defeat the ends of justice by a mere technicality. This ought not to be done."

It is apparent that it was the clear intention of the judge of the District Court of Kaufman County, to transfer this cause to a Criminal District Court in Dallas County. We judicially know that there are two Criminal District Courts in Dallas County, and that in the designation of only one of them does "Number 2" occur, and that is the court to which this cause was transferred, and by which it was tried. See Ellis v. State, 59 Tex. Crim. 626; Malloy v. State, 35 Tex.Crim. Rep.; Tillison v. State, 35 Tex.Crim. Rep.; Forbes v. State, 35 Tex. Crim. 24. In our opinion, no error was committed in overruling said plea.

The only other grounds of the motion relate to what appellant thinks to be our error in holding correct the admission of evidence as to the details of the supposed death of appellant's wife by poisoning. We have carefully reviewed these matters, and adhere to our former ruling.

Being unable to agree with appellant in his contentions, the motion for rehearing will be overruled.

Overruled.