Preston v. State

Citations

• 4 Tex. Ct. App. 186

Syllabus

<p>1. Change of Venue. — Being indicted in M. County for murder, the accused applied for a change of venue on account of prejudice, and moved that the venue be changed to Clay County, whose court-house was the nearest to that of M. County; but the court, acting on its own knowledge of a like prejudice in Clay County, ordered the venue changed to Cooke County; and no exception to this order was then taken. When called for trial in the Cooke District Court, the accused pleaded to its jurisdiction, on the ground that the change to that county was illegal. Held, (1) that the exception to the order should have been taken in the court and at the time it was made; and (2) that, under the provisions of the law, the knowledge of the court of the prejudice in Clay County authorized the change to Cooke County, without proof of such prejudice.</p> <p>2. Second Continuance. — Applying for a second continuance for want of absent witnesses, the accused fully complied with the requirements of the statute, showing the materiality of their testimony and -diligent efforts by repeated attachments to enforce their attendance, and stating that the proper officers had wholly failed to execute and return any of the writs. No counter-showing was made. Held, error to overrule the application and force the accused to trial.</p> <p>3. Evidence. — Appellant and one K. were jointly indicted, but separately tried, for murder. On appellant’s trial the State was allowed, despite his objection, to prove certain threats which, in his absence and some weeks before the murder, were made by K. against the deceased. The evidence to inculpate the appellant consisted of circumstances contemporaneous with the commission of the murder, and there was no proof of complicity between appellant and K. at the time the threats were made. Held, that the threats were not competent or proper evidence against the appellant, for any purpose.</p> <p>4. Error in Capital Cases.—A capital conviction must be set aside on app