Higbee v. State

2 Tex. Ct. App. 407

• Court: Court of Appeals of Texas
• Decided: July 1, 1877
• Status: Published

Opinion

White, J.

The appellant in this case was indicted, tried, and found guilty of an assault with intent to murder, and his punishment affixed at confinement in the penitentiary for two years.

The record contains the testimony of five witnesses, covering eight pages-of the transcript, and yet we look in vain for any proof of venue made in this case. The nearest and only approach to anything like such proof is the statement made by the first witness, that “We mounted our horses and rode a little distance together from said church, on the road to Cameron.”

Positive affirmative proof of venue must be made; and not only made, but be shown by the record. Burch v. The State, 43 Texas, 376. It is unnecessary to cite authorities. After so many repeated decisions by our courts, it appears almost incredible that such errors are still committed by judges and prosecuting officers.

For failure to prove the venue, this case must be reversed and remanded for a new trial.

Reversed and remanded.