instructing courts to look to article 13.18 of the Texas Code of Criminal Procedure when the statute does not specifically provide venue for the prosecution of an offense
How later courts described this case
- instructing courts to look to article 13.18 of the Texas Code of Criminal Procedure when the statute does not specifically provide venue for the prosecution of an offense
Written by the judges who cited it.
The opinion
ON STATE’S MOTION FOR REHEARING.
CHRISTIAN, Judge.
It is the State’s contention in the motion for rehearing that the question of venue is not properly raised by the record. It is observed that bills of exception 1 and 2 relate to the refusal of the court to instruct a verdict of not guilty on the ground that the testimony affirmatively showed that the offense had been committed in Harris County and that the venue was not properly laid in Tarrant County.
It is true that Article 847, C. C. P., provides that this court shall presume that venue was proven unless the question was made an issue in the court below and it affirmatively appears
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by a bill of exception that venue was not proven. However, in the present case it appears that the issue was fought out as to whether the offense was committed in the County of Tar-rant, where venue was 4aid, or in Harris County. Under the circumstances, the question is properly before this court for review. We quote from Munger v. State, 122 S. W. 874 , as follows:
“The venue, we think, was sufficiently proved; but, if it was not directly and positively proved, our statue provides, in order to take advantage of this question, there must be a contest over it in the trial court, and the matter preserved by bill of exceptions, in order to take advantage of it on appeal. This question has been frequently so decided under the terms of that statute. Therefore there could be no error in regard to that matter. However, there is one exception to the above statement, and that is: Where the issue was fought out upon the trial as to whether the offense was in the county where the venue was laid or not, we would notice it without requiring a bill of exceptions.”
Our examination of the record leads us to the conclusion that it was affirmatively shown that the offense was committed in Harris County and not in Tarrant County, where the venue was laid.
We are constrained to adhere to the conclusion expressed in the original opinion.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.