Bohannon v. State

Citations

• 14 Tex. Ct. App. 271
• 1883 Tex. Crim. App. LEXIS 175

Syllabus

<p>1. Murder.—Indictment charged that the defendant “did with malice aforethought kill J. L. Knox by shooting hint with a gun; contrary,” etc. This was excepted to because it does not allege that J. L. Knox was a reasonable creature. Held, that such an allegation was not necessary, and the exception was properly overruled.</p> <p>2. Same.—A further exception taken to the indictment was that it does not charge express malice aforethought, and therefore is not a good indictment for murder in the first degree. But held that the phrase malice aforethought includes both express and implied malice, and is sufficient to charge murder in either degree.</p> <p>3. Change oe Venue.—Being indicted for murder in Fort Bend county, the defendant applied for a change of venue on account of prejudice and an influential combination against him in that county. The court granted the application, but, instead of changing the venue to the county of Wharton, whose court house was the nearest to that of Fort Bend, it, of its own motion and despite the objections of the defense, changed the venue to the county of Austin, assigning, in substance, the reason that a fair and impartial trial could not be had in the adjoining county of Wharton. The defense reserved objections, and subsequently pleaded to the jurisdiction of the District Court of Austin county, where the defendant was convicted of murder in the first degree. Held, that under Article 576 of the Code of Procedure, the judge who changed the venue of the case had the authority, of his own motion, to send' the ease to Austin county for trial. The discretion confided to district judges by the said Article 576 is a judicial and not a personal discretion; but, unless it appears that that discretion was abused to the prejudice of the defendant, its exercise will not be. revised by this court on appeal. See the opinion in this case in exposition of the constitutional and statutory provisions involved, and previous adjudications thereon.</p