# Moore v. State

> Court of Criminal Appeals of Texas · March 14, 1906 · 49 Tex. Crim. 499

URL: https://www.frixlaw.com/law-library/cases/3983798

## Case

- **Full name:** R. H. Moore v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 14, 1906
- **Citations:** 49 Tex. Crim. 499; 96 S.W. 321; 1906 Tex. Crim. App. LEXIS 146
- **Precedential status:** Published
- **Opinion:** Addendum by Davidson
- **Judges:** Davidson, Davids
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3983798

## Opinion text

ON REHEARING.
June 28, 1906.
DAVIDSON, Presiding Judge.
At the Dallas Term, the judgment was affirmed. On motion for rehearing it was transferred to the present term for disposition.
Appellant insists that the original opinion is in several respects erroneous. Among others, that we should have reversed because of a failure of the trial court to grant a continuance. The court qualifying the bill says that there had been a previous application for continuance which had been overruled for one of the witnesses, and that the diligence was totally insufficient for both witnesses. In regard to the second witness, he was indicted for perjury, and was a fugitive from justice, and the application states that information had recently been received by appellant to the effect that witness was probably in Miller County, Arkansas; and no effort had been made to get his testimony because since the alleged discovery of his whereabouts, sufficient time had not elapsed to prepare the depositions. We do not believe the showing was sufficient. The application does not show the efforts to ascertain the whereabouts of the witness who had left the State, and in addition to
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this, the fact that he was indicted for perjury would strengthen the proposition that they would not be able to find and obtain his testimony. This being a subsequent application, the question of diligence is much more important and requisite than if it had been the first application. We do not believe there was any error in the court’s refusal to continue the case.
Without going into a restatement of the facts in regard to the change of venue from Lamar to Fannin County, and retransfer to Lamar and filing and redocketing the case in Lamar County, we refer to the original opinion for these matters. Perhaps it may be necessary to state this much in addition in regard to the transfer from Lamar to Delta County after the case had been retransferred to Lamar from Fannin County. When the case was called in Lamar County, after its retransfer, it is stated in the bill of exceptions that Judge Denton (of the Lamar District Court) sustained appellant’s demurrer to the State’s contest of his original application for a change of venue from Lamar to Delta County.' It was upon the hearing of this original application that Judge Denton transferred the case to Fannin County, over the protest of appellant, and it was upon appellant’s application that the case was returned from Fannin to Lamar County. When Judge Denton sustained appellant’s demurrer to the State’s contest after the retransfer, he ordered the case sent to Delta County. It is contended by appellant that in doing this, Judge Denton having eliminated the State’s contest, acted upon the original application to change the venue, filed at a previous term of court as a basis of the order changing the venue to Delta County; and that this was error, because Lamar County was without jurisdiction to entertain the case on retransfer from Fannin County. In fact, as we understand appellant’s contention, when the case was retransferred from Fannin to Lamar County, by the peculiar expression of the judgment the cause was entirely dismissed, and that all jurisdiction or attempted jurisdiction in Lamar County by reason of the transfer was void, and that court could not acquire jurisdiction. If the order of retransfer from Fannin to Lamar County was correct, then Lamar County obtained jurisdiction, and Judge Denton had authority to dispose of the case as if it had not been transferred to Fannin. We are of opinion that the retransfer and redocketing and refiling of the case in Lamar County was legal, and that court obtained jurisdiction and authority over the case and the person of the defendant. Defendant appeared before the court and was present in court at the time the order was entered changing the venue from Lamar to Delta County, and made no objection and reserved no exception. When the case was called in Delta County, plea was filed to the jurisdiction of Delta County, because of the fact that the case was improperly transferred from Lamar to Delta County. We do not agree with appellant’s contention in regard to this matter. We believe, in the first instance that Tamar County had jurisdiction; and second, that Judge Denton had the authority, either of his own motion, or for any of the reasons
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set out in the statute, to change the venue. He did have the authority to change the venue, and in our judgment if appellant wanted to raise any question in regard to that change of venue, and the orders moving the case from Lamar to Delta, he should have reserved his bill of exceptions at the time the order was entered in Lamar County. Our statute requires this, and the uniform and unbroken line of decisions in this State sustains this view. If as a matter of law or in fact Lamar County did not acquire jurisdiction by reason of the retransfer from Fannin to Lamar, then appellant’s contention would be correct and the authorities cited by him would be in point and sustain that contention. But, as before stated, we are of opinion that Lamar County did have jurisdiction by reason of the transfer from Fannin to Lamar County.
This plea to the jurisdiction of Delta County being overruled appellant filed an application to change the venue from Delta to Red River County, relying mainly upon the previous ruling of Judge Denton, overruling appellant’s original application to transfer it to Delta, and ordering it to Fannin County, contending that this order of Judge Denton at the previous term of the court was res adjudicata of conditions in Delta County, as being adverse to appellant obtaining a fair trial in that county. One of appellant’s counsel also testified in the case identifying these matters and connecting them up so as to show that there was "no further application made to change the venue from Lamar County than that originally filed by appellant. The State introduced the testimony of Tuberville, sheriff of Delta' County, showing that appellant under existing conditions could obtain a fair trial in said county. The trial judge explains this bill’ of exceptions at some length, showing that when the case was transferred from Lamar to Delta, there was no objection in Lamar County urged by appellant and the matters were raised for the first time in Delta County. In empaneling the jury he saw nothing to indicate that there was any sufficient feeling in the county to authorize the conclusion that appellant could not obtain a fair trial. Be that as it may, the only testimony that was introduced as to the then condition of the public mind and state of feeling in Delta County was through the testimony of the sheriff of Delta County. So we gather from the contest over this application to change the venue from Delta to Red River County, that appellant relied upon the previous orders and rulings of Judge Denton in Lamar County, finding that a state of feeling at that time existed in Delta County, which authorized him to refuse in the first instance to transfer the case to that county; and the State by the testimony of the sheriff that at the time of the trial such a state of feeling did not exist. It has been the uniform ruling in this State in regard to this question, that the condition and state of feeling in the county at a prior term of the court is not the criterion of the condition and state of feeling at a subsequent term of the court. We are cited to Blain v. State, 34 Texas Crim. Rep.,
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448, to sustain the contention, we suppose, that the state of feeling as found by Judge Denton originally existing in Delta County, still existed subsequently and at the time of the application for a change of venue from Delta to Red River County. If such was the intended contention, the Blain case does not support it, as we understand the case. In the Blain case this language is found: “These records show, that on the 18th day of July, 1892, as to said case, which was an indictment for murder, there existed against the defendant, in connection with said case, so great a prejudice that he could not get a fair and impartial trial, in the opinion of the judge trying the motion for a change of venue, and that this state of prejudice still existed against defendant on July 25, 1894, in said case, which was a new indictment for the same charge of murder. Said records, giving them their fullest effect, only showed that in connection with said charge of murder there existed prejudice at that time against defendant. It cannot be held, as claimed, that they show, even as to said case that such prejudice still existed when this case was tried in March, 1895, and much less do they establish that such prejudice existed against the defendant with reference to the case for which he was then being tried. Conceding, however, that they were admissible as evidence tending to show the standing of defendant in Gonzales County as to the prejudice against him at that time, we will consider said orders, along with the other testimony in the case offered by the State and the defendant, on the question of a change of venue.” The Blain case is not authority that the matter was res ad judicata. The effect of the decision is to hold the other way. Ror do we understand that the Blain case is out of line or out of harmony with the general current of opinion in this State or with the original opinion in this case. The matter in regard to the previous action of Judge Denton in Lamar County in regard to the condition of things in Delta County was introduced in evidence by appellant, and was met by the State through the testimony of the witness Tuberville. The fact that Judge Denton had decided adversely to appellant’s contention in regard to Delta County in the original application was used as a fact to be taken into consideration by the district judge of Delta County on the trial of the motion to change the venue from that county to Red River. It was not a conclusion, nor was it res adjudicata any further than to ascertain the condition of feeling in Delta County at the time Judge Denton rendered his decision. That decision could not have effected the future state of feeling in Delta County. The feeling in that county was subject to change, and when the application under discussion was made the condition of the feeling towards appellant in Delta County was the correct criterion, and not that previously ascertained by Judge Denton in the original application in Lamar County.
So we are of opinion that the retransfer from Fannin to Lamar was legal and correct. That Lamar County had acquired jurisdiction of the case and person of appellant by the retransfer; that Judge Den-
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ton had the legal authority to transfer the case from Lamar to Delta County on change of venue, and that in order to revise his action in the matter it was necessary for appellant to reserve a bill of exceptions. We do not believe with counsel that it was a question of jurisdiction under the record before us. His different pleas to the jurisdiction of the different courts are not well taken.
It is urgently insisted that tire court should have reversed the case on account of the testimony of Hiss Jennings. We have reviewed this question again, and the. authorities cited by appellant to support his contention. In most of the cases cited, the judgments on appeal were affirmed. In Rangel v. State,
22
Texas Crim. App., 642, the question was there held to be leading and suggestive of the answer. However, the judgment was reversed and in part upon another proposition. While it was held the trial court was in error in regard to the admission of the testimony of the witness Bravo, it does not put the reversal upon that ground; in fact we are led to believe that it was put upon the error in the court's charge. We have not been cited to any ease where a judgment was reversed exclusively for the reason that leading questions had been asked and answered. It is not impossible that such a case might arise. But as before stated, we do not believe that this question was sufficiently suggestive of a desired answer to place it within the category of a leading question that would require a reversal of the judgment by reason of any damaging effect. The answer of the witness could have been yes or no to the question. It was in the affirmative. But it barely suggested .any more an affirmative than a negative answer, and if so rather slightly. We do not believe, it is of sufficient importance, even if erroneous, to require a reversal of the judgment.
It is urgently insisted that we were in error in holding that the trial court did not err in admitting in evidence the indictment against deceased charging him with an aggravated assault upon appellant. The objection mainly was that this was a matter occurring between other parties, and for which appellant was in no way responsible, and could in no manner be bound. The mere fact that the grand jury returned an indictment was not binding upon appellant, and may not have effected him one way or the other, so far as the deceased is concerned. But the character of testimony has always been introducable, as we understand the authorities in Texas. In this connection we might state that the record shows by verbal testimony that deceased had shot at appellant three times prior to this transaction, and it seems to have .formed the basis of the indictment introduced in evidence. Previous difficulties between the accused party and the deceased (for whose death the accused was being tried) are introducable on the question of motive, and even for other reasons. Kunde v. State, 22 Tex. Crim. App., 65; Hudson v. State, 28 Texas Crim. App., 323; Barkman v. State, 52 S. W. Rep., 73 ; Attaway v. State, 41 Texas Crim. Rep., 397 Weaver v. State, 46 Texas Crim. Rep., 617 . If it
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be conceded that we are in error in regard to the admission of this indictment against deceased, as this record is before us it will be, in our judgment, harmless or at least of not sufficient gravity to require a reversal. The facts in regard to the shooting of appellant by deceased, which occurred sometime prior to this homicide, and forming the basis for said indictment, were fully proved and without objection. The full effect of the previous difficulty was before the jury through the testimony of witnesses.
We have gone over this case with considerable care, because of the earnestness with which appellant’s counsel urged the grounds of the motion for rehearing, but we do not believe there* was any such error committed on the trial of the case as would justify a reversal.
The motion for rehearing is overruled.
Overruled.
Brooks, Judge, absent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3983798. Public record. Not legal advice.