PRENDERGAST, Judge.
Appellant was indicted for murder in Eastland County, Texas. In the first trial of the ease in that county there was a hung jury. On the second trial appellant was convicted of murder in the second degree. He appealed from that trial, and this court, on February 7, 1912, reversed that judgment. The case is reported in 65 Tex. Crim. Rep., 290, 144 S. W. 229.
The regular term prescribed by law for holding the District Court in Eastland County fixed the time for the term to begin on the first Monday in January and that it could continue for eight weeks. The first day of January, 1912, was on Monday; so that the eight weeks which said court was authorized to be held could continue at least until midnight of February 24, 1912. On January 31, 1912, the business of the term apparently having been disposed of, the district judge had entered in the minutes of said court the following: “The above and foregoing minutes embraced on and between pages 430 to 458 hereof, being read in open court and found correct, are hereby approved as a part of the minutes for the January term, 1912, of this court. Witness my hand this, the 31st day of January, A. D. 1912.
“Thomas L. Blanton,
Judge 42nd Judicial District of Texas,”
“Attest: Joe Burkett, Clerk.”
And then it seems adjourned the January term of said court.
Presiding Judge Davidson has prepared an opinion herein by which he holds that this conviction must be set aside and the cause reversed and the venue ordered changed back from Shackelford County, where this trial occurred, to Eastland County, on two grounds:
First, that the special term of court of Eastland County called by Judge Blanton, the judge of the district embracing Eastland County, at which the venue of this case was changed from Eastland to Shackelford County, was not a special term of that court convened by the judge, but that it was an attempt to reopen the regular January term of said court, which he holds could not be done.
Second, that the order changing the venue from Eastland to Shackelford County is void, because the order convening the District Court of Eastland County in a special term, or the attempt to reconvene the regular January term, was made pending the appeal of this' case in this court and before the mandate from this court reached the lower court.
As we could not agree with him on either of said propositions and as the writer had to prepare an opinion in the Will Drake case, a companion ease to this, on the same questions, the duty of preparing the opinion in this case was, therefore, devolved upon the writer hereof.
On February 12, 1912, Julge Blanton, the judge of the 42nd Judicial District of Texas, which embraces Eastland County, made and had entered in the minutes of said court on February 14, 1912, the following order convening the said court in special session:
“IN THE DISTRICT COURT OF EASTLAND COUNTY, TEXAS.
“During Regular Time of January Term, 1912.
“It appearing to the court that the regular term of the January term, 1912, of the District Court of Eastland County, Texas, convened on the first day of January, A. D. 1912, and by law could continue for eight weeks, or until and including the 25th day of February, but that because all business then on the docket subject to trial had been disposed of on the 31st day of January, 1912, court then adjourned; and it further appearing to the court that since said adjournment, the cases of No. 2540, the State of Texas vs. Bill Mayhew and No. 2666, the State of Texas vs. Will Drake, have been reversed by the Court of Criminal Appeals, and that the mandates in same will have been duly returned to this court by the time hereinafter mentioned; and it further appearing to the court that the said Will Drake is now" in jail without bond and that he is now entitled to bail; and it further appearing to the court that a necessity will exist for transferring said two cases on a change of venue to another county, and that unless such orders are made during the regular eight -weeks
allowed by law for said January term, 1912, said two cases will have to He over until the next regular term of court, six months hence, thus depriving both the defendants and the State of a speedy trial. It is therefore ordered that said District Court of Eastland County, Texas, convene in special session at the courthouse of Eastland, on the 24th day of February, A. D. 1912, at 8:30 o’clock a. m. to resume business under the regular January Term, 1912, of said court, and during such regular term time, and only for the purpose of disposing of said two cases above mentioned, at which time the said two defendants, BiH Mayhew and Will Drake, are hereby notified to be present before this court, and the clerk hereof is to spread this order upon the minutes of this court and issue and have precept and copy of this order served upon Messrs. H. P. Brelsford and J. J. Butts at once and copy published in the Eastland Chronicle, done this February 12th, 1912. “Thomas L. Blanton,
“Judge 42nd Judicial District of Texas.”
In accordance with said order Judge Blanton appeared at the time and place fixed therein, had the court duly opened and the minutes show as follows:
“Be it remembered that on this the 24th day of February, A. D. 1912, of the District Court of Eastland County, Texas, by order of this court, made on February 12th, 1912, the Hon. District Court of Eastland County, Texas, was again convened, there being present and presiding, Thomas L. Blanton, judge of the 42nd Judicial District of Texas and the following officers, viz.: Hon. W. L. Morris, district attorney; E. P. Kilborn, sheriff; Joe Burkett, clerk, when the foHowing proceedings were had and entered of record, to-wit:
Texas ] Bill Mayhew [
No. 2540. January term, 1912, of the District Court o£ Bastland County, Texas.
“February 24th, 1912.
“On this day'this cause coming on to be heard on the question of the change of venue of said cause to some other county; and thereupon came on to be heard the defendant’s plea to the jurisdiction of this court, to at this time, make and enter an order or judgment changing the venue of said cause and transferring same to some other county for trial and the court having heard and considered said plea and being fully advised in the premises is of the opinion that said plea is not well taken and that this court has jurisdiction to make and enter said order so changing the venue of said cause, it is therefore considered, ordered and adjudged by the court that said plea be and the same is hereby overruled, to which said order and judgment the defendant in open court then and there duly excepted.”
The said plea to the jurisdiction of the court in the order just above
referred to is quite lengthy. It is unnecessary to copy it in full. In it appellant sets up and contends: “This court has not jurisdiction, power or authority to make and enter a valid order or judgment changing the venue of this cause from the District Court of East-land County, to the District Court of any other county in the State of Texas, for this:
“1. It appears from the order of the judge convening of the
special term
of the District Court in and for Eastland County, Texas, a certified copy of which is hereto attached and made a part hereof and reference thereunto made:
“(a) That this is a
special term
of said District Court in and for said district. # *
“(d) That said order on its face shows that said
special term
was (not) convened for the purpose of trying' any cases on the docket of said court; nor for the purpose of inquiring into any violation of any criminal law of the State of Texas, occurring subsequently to the adjournment of the regular term of the District Court in and for said Eastland County, nor for the purpose of transacting any business or engaging in any proceedings or doing aught else contemplated by, or provided in, the statute law of the State of Texas authorizing the convening of the
special term
of the District Court; * # *
“(g) Said order, when considered in connection with the laws of the State of Texas providing for the holding of courts in the 42nd Judicial District in said State of Texas, shows that this cause should not be tried and disposed of at this
special term
of this court, because the empaneling of no petit jury is provided for * * * nor in the order of the judge convening this court in
special term
and because this is a
special term
of a district court in and for the said County of Eastland, could not remain in session longer than 12 o ’clock a. m. on this date, because, etc. ■ * * ®
“2. That no notice of the time and place of the convening of said
special term
of this court have been issued by the clerk of the District Court in and for Eastland County, Texas, nor published by the sheriff of Eastland County as required by law.
“3. Because the law authorizing and providing for the convening and holding oi
special terms
of the District Court does not authorize the convening of said court in
special term,
nor the holding of
special terms
thereof, merely and solely for the purpose of changing the venue of cases of the docket thereof, or that may be pending therein. ’ ’ (Italics ours.)
It is useless to copy any more of appellant’s said plea. What we have copied above was done for the purpose of showing that the appellant and his attorneys contended only and solely that said term of court at which the venue in this case was changed was a
special term
and not the regular term of said court provided by law and no part thereof. The whole motion throughout, in every particular, so states it to be a
special term,
so claims it to be a
special term,
and
all of the objections made thereto are because it is a
special term
and not the regular term and no part of the regular term.
Then, in addition to this, the appellant took a bill or exceptions to the action, ruling and judgment of the court overruling his said plea to the jurisdiction on the grounds stated therein, restating as his objections thereto substantially the same grounds on which he had made it, contending, throughout in his objections, that the said term of court was a
special term
thereof and only a
special term
and not the regular term and no part of the regular term. It is unnecessary to repeat by quotation his exceptions in his bill of exceptions, for they are merely a repetition of his contentions in the said motion or plea itself. It might be added that the order of the court convening the court, also states it is a special term.
When the said term of court was thus convened in special session in strict conformity to and in obedience to said order, above copied, convening it, the appellant appeared therein, in open court in person and all of his attorneys so appeared therein'in open court.
It seems that the district judge, after making his order convening the said District Court in
special
session, because of the fact that the time at which he convened it was within the period of time through which the regular term could have been held, undertook to treat it and designated it in his orders made on February 24, 1912, as a part of the said regular term of the court.
The recitations in these various orders wherein the judge may have designated the convening of said court in
special term
or session as a part of the
regular January term
of the court can not change and does not change the legal effect and the effect in fact of the orders that were made, and that the same was a
special term
or session of the court. In the very order convening the court, after the recitations, and the only order that is made therein is in this language: “It is, therefore, ordered that the said District Court of Eastland County, Texas, convene in special session at the courthouse in Eastland on the 24th day of February, A. D. 1912, at 8:30 o’clock a. m.’-’ This shows, without question and without doubt that he was convening and did convene the said District Court in special session; that said time at which he convened said special session embraced part of the time fixed by law at which the regular term of said court could have been continued and held, can not and does not make any difference so far as affecting the validity of said special term of the court and the orders made at that time are concerned. Even if it be conceded, and said orders could be construed to mean, that said special term of the court so called and convened was intended to be a part of the regular January term of said court, it could have no such effect as to render the term of the court illegal. And as we see it, by no show of reason can it be claimed that if it was so attempted to be, or actually, so designated, it would be a regular term of the court or any part thereof.
As to appellant’s various grounds of objection to the convening of said court in special session and that it could not be held and convened in special session, solely for the purpose of entering an order changing the venue and that a special term could not be convened for any purpose, without giving the thirty days notice and publication thereof as formerly required by the law, we think they can in no event be maintained.
We think the history of the legislation of this State on this subject clearly demonstrates that no notice, or publication thereof, is now required by the laws of this State, and that a special term of the District Court can be convened for the purpose of entering any order that could be entered at a regular term thereof. It is unnecessary to here detail the history of this legislation, other than to state, that prior to our Constitution of 1876, no special term of the District Court could be held or called for any purpose, under previous constitutions. In order that there should be no question that a special term would be entirely légal it was expressly provided for in our Constitution of 1876, Section 7, Article 5. The Legislature, soon after our present Constitution was adopted, provided for special terms of the District Court, but it required the order therefor to be made during the regular term while in session and the thirty days’ notice and publication thereof before a special term could be held. Then afterwards it passed an Act in 1905, providing for the convening of the court in special term without fixing any time for notice and publication thereof, and without the court then being in session at a regular term; but by the terms of section 5 of that Act certain provisions of the Revised Statutes of 1895 were not repealed, and there was some doubt entertained, whether or not a special term could be called under that Act of the Legislature without giving the thirty days notice. This court Has held, in construing that Act in connection with the Revised Statutes of 1895, that no notice and no publication thereof was necessary; but whatever doubt there may have been before the Revised Statutes of 1911 were adopted, there can be none since.
The thirty-second Legislature, at its regular session of 1911, passed an act adopting the Revised Civil Statutes of the State of Texas, which was approved by the Governor on April 1,1911, by the terms of which the said Revised Statutes became effective September 1, 1911. By the Revised Statutes of 1911 the Legislature re-enacted substantially Articles 1111 and 1112 of the R. S. of 1895, which are now Articles 1718 and 1719, respectively, in precisely the same language as in the Revised Statutes of 1895. These two articles provide for holding the regular terms of court. But instead of re-enacting any of the other articles in Chapter 4, Title 28 of the Revised Statutes of 1895, which required in certain contingencies thirty days notice and the publication thereof in convening special terms of the District Court, enacted, or re-enacted the following articles in said chapter:
“Art. 1720. Whenever it may become advisable, in the opinion of a district judge, to hold a special or terms of the District Court in any county in his district, such special term or terms may be held; and such district judge may convene such special term at any time which may be fixed by him. Such district judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law. Such jurors may be summoned to appear before such district court at such time as may be designated by the judge thereof; provided, that in the discretion of the district judge, a grand jury need not be drawn or impaneled.
“Art. 1721. The grand jury selected, as provided for in the last preceding article, shall be duly impaneled, and shall proceed to the discharge of its duties at a regular term of the district court.
“Art. 1722. Any person indicted by the grand jury impaneled at a special term of the district court may be placed upon trial at such special term.
“Art. 1723. No new civil eases can be brought to a special term of the district court.
“Art. 1724. The juries for any special term shall be summoned in accordance with the law regulating juries at regular terms of court; and at any special term all proceedings may be had in any ease which could be had at any regular term of such court; and all process issued to a previous regular term or to such special term, and all orders, judgments and decrees, and all proceedings had in any case, criminal or civil, which would be lawful if had at a regular term, shall have the same, force and effect; and any proceeding had may be appealed from under the same rules, regulations and limitations as provided for in appeals from regular terms of court.
“Art. 1725. Should the judge of any District Court not appear at the time appointed for holding the same, and should no election of a special judge be had, the sheriff of the county, or in his default any constable of the county, shall adjourn the court from day to day for three days; and if the judge should not appear on the morning of the fourth day, and should no special judge have been elected, the sheriff or constable, as the case may be, shall adjourn the court until the next regular term thereof.
“Art. 1726. Whenever any District Court shall be in the midst of the trial of any cause when the time for the expiration of the term of said court, as fixed by law, shall arrive, the judge presiding shall have the power and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. In such case, the extension of such term shall be shown in the minutes of the court before they are signed. In case of the extension of the term of court, as herein provided, no term of court shall fail because thereof in any other county, but the term of court therein may be opened and held as now provided by law, when the district judge fails to appear
at the opening of a term of court.” (These articles with 1718 (1111) and 1719 (1112) are all of our statutory provision on both regular and special terms of the District Courts.)
Then in section 4, repealing clause of the Final Title of said Revised statutes of 1911, under the general provisions enacted as follows : ‘ ‘ Sec. 4. That all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not hereby expressly continued in force, are hereby repealed.”
So that, without question and without doubt, long before the said District Court of Eastland County was convened in special session under the terms of Judge Blanton’s order, copied above, all those articles of the Revised Statutes of 1895, which required previous notice of the time and publication, convening the District Court in special session, were expressly repealed by the Legislature.
In our opinion, therefore, there can be no doubt but that no notice whatever, and no thirty days time, or any other time, is required to be given and published of the convening of any speieal term of the District Court in this State, and in our opinion the district judge can make any order at any special term of the District Court that he could make at any regular term of the court, and, hence, that he could make the order changing the venue in this case which would be perfectly valid whether he transacted any other business at said special term or not. Ex parte Martinez, 66 Tex. Crim. Rep., 1, 145 S. W. Rep., 959; Ex parte Boyd, 50 Texas Crim. Rep., 309; McIntosh vs. State, 56 Texas Crim. Rep., 134; Ex parte Young, 49 Texas Crim. Rep., 536.
Appellant in his brief cites us to Jowell v. Coffee, 132 S. W. Rep., 886, wherein the Court of Civil Appeals at Fort Worth in a civil case on October 29, 1910, held that the said Act of the twenty-ninth Legislature of 1905, p. 116, did not repeal the said articles of the Revised Statutes of 1895, requiring thirty days notice and the publication thereof as a prerequisite to a valid special term. Whether that decision is correct or not is unnecessary for us to determine, because we apprehend that neither that court nor any other of the-Courts of Civil Appeals, nor the Supreme Court, would now hold since the adoption of the Revised Statutes of 1911, and the express repeal of Articles 1114 to 1116, inclusive of the 1895 Revised Statutes, which required notice, publication, etc., that any thirty days notice or any other time was necessary to be given and published as a prerequisite to the legally convening of a District Court in special term. As the Revised Statutes now are the ease of Jowell v. Coffee, supra, has no application.
We can not understand how it can be contended from this record that the order of the court changing the venue in this case from East-land to Shackelford County is - void because this case was pending on appeal here when the said order convening the District Court, of
Eastland County in special session, was made. We judicially know that the former appeal in this case was decided and this cause reversed on February 7, 1912; that no motion for rehearing was made in this court; that the mandate in this case on the former appeal was actually issued from this sourt and sent to the lower court on February 19, 1912. The order of February 12, 1912, by Judge Blanton convening the District Court of Eastland County, made no order whatever in this case. It did not pretend to make any order therein as an inspection of it will show. It specifically-recites, as one of the facts, that this ease had been reversed “and that the mandate in the same would have been duly returned to this court by the time hereinafter mentioned,” which time hereinafter mentioned was, as the order shows, February 24, 1912. And further said order recites as a fact that said court was convened in special session on February 24, 1912, “only for the purpose of disposing of said two cases above mentioned.” ’ Clearly and unquestionably the order convening said court in special session in no way then made any order whatever in this case, but provided for the convening of the court so that on February 24, 1912, an order could, and would then be made.
Then the order of said court made and entered at said special term in open court on February 24, 1912, is as follows:
“Now on this the 24th day of February, 1912, during the 8th week of the regular time allotted by law for holding the regular term 1912 of the District Court of Eastland County, Texas, court having been regularly convened by previous order of this court entered upon the minutes, and opened by call of the sheriff, above case was duly called when appeared the defendant, Bill Mayhew, both personally and by his attorneys or record, and it appearing to the court this case has been twice before been tried in this county, at each of which trials there was a large crowd of people from different portions of the County, the courtroom being crowded both on the lower floor and in the gallery the first trial resulted in a hung jury and the second trial which was had on January 11, 1910 resulting in a conviction, since which time this case has been in the Court of Criminal Appeals until recently when the mandate was returned into this court; and it further appearing to the court that this is the last day (it being Saturday, February 24,1912) upon which business may be transacted during the regular January term, A. D. 1912, of the District Court of East-land County, Texas, and that unless this case is transferred to some other county for trial both the State and the defendant will be deprived of a speedy trial as this case will then have to go over until the next regular term of this court which meets in July, as the regular term of the District Court of Taylor County will convene next Monday, February 26, 1912; and it further appearing to the court that because of the prominence of both the defendant and the deceased, and their many friends, and the notoriety given this cause by the two for
mer trials and the results thereof, it will be difficult to obtain another jury that would be fairly impartial, alike to the State and the defendant, it is the opinion of the court, on his own motion that this case should be' transferred to another county. And court meeting in Albany, of Shackelford County, before it meets either in Stephens or Callahan Counties it is ordered and adjudged and decreed by the court that the venue of this case be and the same is hereby changed from the District Court of Eastland County, Texas to the District Court of Shackelford County, Texas, to be tried at the courthouse in Albany, Texas, on Tuesday, April 16, 1912, at 8:30 o’clock a. m., the defendant having heretofore been duly arraigned on the indictment charging him with murder and his plea of not guilty having heretofore been entered of record and all of his special pleas having been heard and determined.”
Then the order further directs all witnesses to appear at Albany, in Shackelford County, at the time set for the trial of said case, fixes the amount of the bond of the appellant and shows that he entered into recognizance to appear in Shackelford County at the time and place fixed in said order. It is unnecessary to copy that part of said order. An inspection of the order of the change of venue, just above copied, will show that it specifically states that the mandate from this court to that court had been returned into that court. The mandate having issued from this court on February 19th, we know, as reasonable men, that two days time would unquestionably be ample time for the mandate to reach that court from this, and while the specific date on which it was filed in that court is not made to appear, there can be no question whatever but that it had reached that court and been filed therein before February 24, 1912, the date of the convening of said court in special term and the making of the order changing the venue therein. Again, the judge in approving appellant’s lengthy bill of exception to the said order changing the venue, specifically states in explanation and qualification thereof, that the mandate was returned into that court from this court. Again, appellant’s able and skillful attorneys in no way, and nowhere, claim, or intimate, that the mandate had not been returned from this court and filed therein at and before the time the order changing the venue was made. Certainly, if such had been the fact they would in some way, somewhere, have raised the question and there can be no doubt but that if they had, the district judge would have sustained the point and made no order, and would not have violated that provision of the statute to the effect that while the cause is pending in this court the lower court has no authority or right whatever to make any order therein.
So that, in our opinion, all that portion of Presiding Judge Dayidson’s opinion contending that the order changing the venue was void, because the lower court had no jurisdiction on account of the order being made before the mandate was returned and filed therein, has
no application whatever to this case, and it is, therefore, unnecessary for us to further notice that point.
This brings us to the question of the right of the district judge of his own motion to change the venue from Eastland to Shackelford County. In support of appellant’s plea to the jurisdiction and his resisting that order changing the venue, he introduced several witnesses whose testimony in the most favorable light for appellant would be construed to tend to show that there was no necessity for such change. The State introduced no testimony on the subject. The court was acting and did act, in changing venue, on his own motion, as he had the right to do. It is unnecessary to recite the evidence of appellant’s witnesses on this point. A careful consideration of it all is snmTnp.fl up in the fact that their testimony tends to show that in
their opinion
a jury to try this case could be procured in Eastland County. It all shows, however, that the deceased and the appellant’s family, especially, were prominent people in that county; that the killing of deceased excited a great deal-of interest and much more than usual at the time; that the families of these parties were influential; that the newspapers all over the county had had more or less to say about the killing. That two trials of the appellant had already been had in that county, and it is evident, especially on the second trial, trouble was had in securing a jury; that a great many people from the different portions of the county had attended both trials, and a great deal of interest was taken all over the county, by the people thereof.
The Legislature has expressly given the judges of the District Courts specific and ample authority and power, of their own motions, to change the venue in any case. Article 626, Code Criminal Procedure, is: “Whenever in any case of felony the district judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State can not, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue.” This court has repeatedly construed and discussed this article of the'procedure. It is unnecessary to cite all of the cases thereon. In Bohannon v. State, 14 Texas Crim. App., 271, this court, through Judge Willson, said: “We are of the opinion, and so hold, in accordance with the former decisions of this court, that under Article (576) 626 of the Code of Criminal Procedure, which we have quoted, the judge had the authority, of his own motion, to send this case for trial to Austin County. He was clothed with this discretion by the express and unqualified words of the law, and this law was enacted under the express sanction of the Constitution. (Const., art. 3, sec. 45.) It is true that this discretion is a judicial, and not a personal one (Walker v. The State, 42 Texas, 360; Dupree v. The State, 2 Texas Crim. App., 613); yet, it being a discretion created and confided by the law, it
will not be revised by this court in the absence of any showing that it has been abused to the prejudice of the defendant. Such has been the uniform practice of this court, established by numerous decisions, and from which we see no reason to depart. (Noland v. The State, 3 Texas Crim. App., 598; Johnson v. The State, 4 Texas Crim. App., 268; Labaite v. The State, 6 Texas Crim. App., 257; Daugherty v. The State, 7 Texas Crim. App., 480; Cox v. The State, 8 Texas Crim. App., 254; Myers v. The State, 8 Texas Crim. App., 321; Grissom v. The State, 8 Texas Crim. App., 386; Webb v. The State, 9 Texas Crim. App., 490.)
“It has been ably argued by counsel that it is dangerous to the liberties and rights of the citizen to confide to -its district judges such unrestricted power as is conferred by the broad and unqualified language of Article (576) 626 above quoted, and that it should be limited by the provisions of Article 581, following i.t. We do not regard Article 581 as being restrictive of the powers conferred by Article 576, and whether or not the power complained of is a dangerous one to be vested in district judges is not a question for this tribunal to determine.” Again, Presiding Judge Davidson, for this court, in Lacy v. State. 30 Texas Crim. App., 127-8, said: “The granting or refusing the application rested in the sound discretion of the trial court, and on appeal the action of said court upon such application will not be revised unless it should appear that said discretion has been abused. Martin v. The State, 21 Texas Crim. App., 1; Pierson v. The State, 21 Texas Crim. App., 14; Scott v. The State, 23 Texas Crim. App., 521; Meuly v. The State, 26 Texas Crim. App., 274.”
In our opinion, it is nowhere, and in no way, shown in this record that the trial judge abused his discretion in such a way as would authorize or permit this court to reverse the case, because he changed the venue. For other authorities see sec. 661, p. 424, of White’s Ann. C. C. P., and sec. 200, Branch’s Crim. Law of Texas.
There can be no question but that the district judge, the judge of said court, who was the judge thereof at the time the killing in this case occurred, when the indictment was found and when both previous trials of this case was had, was very much more competent to tell and to know whether a trial,, alike fair and impartial to the State and the appellant, could be had °in Eastland County and a proper jury procured therein, than either or all of the witnesses on that point who testified for the appellant. He acts in this, as in every other matter, under the sanction of his official oath. He is presumed to act, and we have no doubt in this ease did act, fairly and impartially, and the record does not suggest in any way that his action-was personal or arbitrary in an illegal sense, and it does not in any way indicate that he unjustly or otherwise usurped any power or authority in changing the venue and that he in no way acted tyranically, but that his action was that of a fair and impartial judge and in an entirely judicial way and manner. So that, in our opinion, the record in no way discloses
that the order changing the venue of the trial of this ease was otherwise than entirely legal, proper and valid.
Appellant’s bill of exception No. 3, after giving the number of the cause, the court and the date, is as follows:
“Be it remembered that on the trial of the above entitled cause the State was permitted to prove by the witness Bob Agnew over the objection of the defendant that he was in the wagon yard at the time of the difficulty between the defendant and deceased and that he saw Jim Mayhew go to the corner of the Graey & Thomas store building, near where the deceased was laying in the arms of Ike Clarke, and put or secrete a dirk knife or hollow ground razor in a hole in the wall of the building near where he was standing. To the admission of said evidence defendant objected unless it could be shown that the defendant was present, and the court overruled said objection and admitted said evidence the defendant expected to said ruling and herewith tenders his bill of exception and asks the same may be signed and made a part of the record in said cause, which is accordingly so done with this explanation, viz.: Said act was clearly a part of the res gestae occurring within a few seconds after defendant stabbed deceased and after testimony showed that at said time the defendant was standing just a few feet away from Jim Mayhew, and that said Jim Mayhew and defendant then walked away together.” This bill is wholly insufficient under all the rules to require this court to pass upon the question. Conger v. State, 63 Texas Crim. Rep., 312, and eases cited therein, and cases also collated under sections 857 and 1123 of White’s Ann. C. C. P.
Even if we consider this bill it presents no reversible error whatever. The only objection to the admission of the testimony was “unless it could be shown that the defendant was present. ’ ’ The qualification by the judge of the bill in substance and in effect, as quoted above, meets this objection on two grounds: First, he shows that it was a part of the res gestae of the transaction and, second, it in substance and in effect shows that the appellant was present. Jim May-hew was appellant’s son and was the person to whose relief appellant claims to have gone at the time he killed the deceased, and Jim May-hew was the party with whom the deceased was having a fight at the time appellant killed the deceased. There can be no question that the whole record in this case shows that appellant was present at the time this act was done by Jim Mayhew.
There was no error in the court, on the objection of the State, refusing to permit Dr. Jones to state the mental condition of appellant when he, Dr. Jones, first saw him in the Mayhew building, as shown by appellant’s 4th bill, to the effect that he, appellant, “seemed to be very much distressed.” The court in allowing this bill qualified it by stating that such testimony was clearly no part of the res gestae; that the witness testified that he received a call to attend the deceased, who was dead when he reached him, and that it was twenty or twenty-
five minutes thereafter before the witness saw the appellant, and the evidence did not disclose how much time may have elapsed between the time of the homicide when the witness received said call. The appellant, accepting this bill thus qualified, is bound thereby.
Neither does appellant’s bill 5-a show any error whatever in the court’s permitting the State to cross-examine Aaron Mayhew, defendant’s witness, and show thereby that before the homicide Mayhew & Co., a corporation, had sued the deceased on- a debt owed by him to the corporation, and that appellant owned stock in such corporation and was interested in and worked for it. The court in his qualification of said bill shows that just about an hour before the homicide, appellant told Hamby that deceased owed $400 or $500 which appellant had dug out of the ground and that the fight with Aaron Mayhew arose because of this; that deceased could not ride around on his money; that he was a damnder son-of-a-bitch than Bill Hudgens because Bill Hudgens would pay his debts and that he would cut deceased’s damned guts out.
Neither does appellant’s bill, as. qualified by the court, show any error in permitting the testimony of what occurred at the barber shop immediately preceding and at the time of the fight between deceased and Aaron Mayhew.
By another bill it is shown that after the reputation of Avener Mayhew, one of appellant’s witnesses, for truth and veracity had been attacked'by the State by proving contradictory statements made by him, appellant offered to prove by several witnesses that they were acquainted with the reputation of said witness for truth and veracity and that it was good. This bill shows no error whatever as qualified by the court, because it is shown that the State did not attack the general reputation of appellant’s said witness and made no attempt whatever to prove that it was bad and that the State admitted that his general reputation for truth and veracity was good.
By another bill it is shown that after the jury had brought in their verdict and it had been received and the court had rendered judgment thereon, while they were still in the jury box and before they were discharged by the court, the court said to them:
“Gentlemen of the Jury: Before discharging you, I will make one suggestion. Sometimes counsel for. the defendant, in their zeal for their client, will try to discover some improper conduct on the part of the jurors, and get statements from them to use in their motion for a new trial. There is nothing wrong in this, for a good attorney should do everything in his power legitimately for his client. You have a perfect right to tell counsel anything you wish, and to give counsel any statement you may wish, but my suggestion is, that when you do it, be sure that what you say is absolutely true, for you would not want to accuse your fellow jurors of any act of impropriety and probably get him punished unless he was in fact guilty and deserved some punishment.” No injury whatever is shown to appellant by
what the court said in this matter either by said bill or otherwise. The appellant in no way claims that the jury in any way acted improperly or that any juror failed or refused to give appellant or his attorneys any information whatever about what they had done as jurors. No possible injury to appellant is shown by these remarks of the court.
The bill of appellant objecting to some testimony of a threat by the appellant against the deceased, testified to by Joe Burkett, as qualified by the court, shows no error whatever. The court in qualifying the bill says that this threat by appellant against deceased occurred just a few hours before the homicide. Aaron Mayhew testified that his father (appellant) was mad with deceased because deceased and himself had had a fight. Hamby testified that appellant told him all about his fight and called deceased a damned son-of-a-bitch and said he would cut deceased damned guts out, and other evidence clearly showed .that this threat was directed towards deceased.
These are all the matters raised by this record necessary to be passed upon by us, except some complaints of the court’s charge and the refusal of the court to give three special charges- requested by appellant.
As to the three special charges requested, the record shows only and solely that appellant requested them, quoting them, and the court refused them. In the motion for new trial the only complaint made is that the court erred in refusing to give that charge. There is no reason or necessity anywhere given or shown by the special charge itself, or the motion for new trial, or elsewhere in the record, why such charge should be given, and we, even in examining the record, have failed to find why any or either of these charges should be given. Bird v. State, recently decided; Ryan v. State, 64 Tex. Crim. Rep., 628; 142 S. W. Rep., 878; Berg v. State, 64 Tex. Crim. Rep., 612; 142 S. W. Rep., 884. Besides, the charge of the court, together with the special charges requested by appellant, which the court did give, substantially and fully covers everything that was necessary or proper for the court to give on the subject. None of appellant’s objections to the charge of the court present any reversible error whatever.
The judgment will be affirmed.
Affirmed.