Meyers v. State

HUKT, Presiding Judge. Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal. We have read this record very carefully, and have also read the briefs for appellant, and given the same, in connection with the record, a close investigation, and have found but one matter which we deem necessary to discuss at any length. *512 We axe of opinion that the court did not err in refusing to submit the question of manslaughter to the jury, predicated upon the fact that appellant was at a house of prostitution, and was the guest, so called, of the proprietress thereof, and that, when she ordered deceased to leave the premises, he refused to do so, accompanied by insulting conduct, etc.; that this did not constitute a legal provocation to the defendant. Application was made to change the venue of the case, and issue was formed as the statute requires upon this application. Sixteen witnesses from different sections of the county were examined, and we have carefully read their testimony. Hot one but swears that the people, so far as heard from, in that county, believed the defendant was guilty, and ought to be punished; a great many stating that he ought to be hanged. We have never read the testimony in any ease, bearing upon such a motion, in which there was more perfect accord in this respect. ■ It is true, some of the witnesses state that they believe the defendant could obtain a fair trial in the county of Milam; but, when the facts sworn to by them are looked to, there is nothing upon which such a conclusion could be based—that is, no legal grounds for such a conclusion. In such a contest a great many men swear that they believe a fair trial could be obtained in the county, but their opinion as to what constitutes a fair trial is frequently at war with principles of law and justice. They believe that a fair trial consists in the conviction and punishment of the accused ; and it is often the case that, the more prejudiced the man is against the accused, the more confident is he that the accused can get a fair trial, for in his opinion nothing would be a fair trial which did not result in the conviction and punishment of the accused. Again, it is a startling proposition to a great many that twelve impartial jurors could not be obtained in a count)' of 5000 voters. They never reflect that the jury is obtained by legal proceedings; and, no doubt, if their attention were called to this, and they thoroughly understood the law regulating the manner in which jurors are obtained and impaneled, they would not give such answers. If the accused were permitted to select his triors, he would not in any cause be likely to move to change the venue. But, as before stated, the jury is obtained and impaneled under the rules of law, and the law providing for á change of venue proceeds upon the hypothesis that the prejudice may be so great and universal in the county as that improper jurors may be obtained, notwithstanding every test may be applied to them. If there were no danger of obtaining prejudiced jurors on the panel, then the law providing for a change of venue upon this ground has no foundation in reason. If obnoxious jurors could be detected and kept from the panel by the questions provided for in the Code, then there would be no reason for a change of venue. But, as above stated, the law providing for the change proceeds upon the assumption .that, notwithstanding all tests are made, there.may be such-a prejudice in the county as will render it probable that an impartial juror might serve. From the manner the witnesses were examined, evidently the learned judge believed that the statute with reference to prej *513 udice had reference only to prejudice against the accused, separate and distinct from his crime, or personal prejudice against him, with or without any connection with the crime. We can not comprehend how this proposition can be sound. It would make no difference with the defendant whether he was hanged or sent to the penitentiary because his triors had prejudged his guilt, or had prejudged him as a man. It would be the same to him. The jurors trying the case are sworn to pass upon his guilt, and if they have prejudged the case against him, that judgment must be overcome by the accused; thus throwing the burden of proof upon the accused. A juror may dislike the accused, be prejudiced against him personally, and when he is placed in the box to pass upon his guilt,—independent of whether he likes him or not,—may give him justice. While the statute provides questions to test whether the juror is prejudiced against the accused, or had prejudged his case, we hold that the statute in regard to change of venue embraces both characters of prejudice. As to the correctness of this, we have no doubt. We will extend this discussion no further; stating that we do not feel we can add anything to what has been said in the case of Randle v. State, 34 Texas Criminal Reports, 43. We believe that opinion to be perfectly sound and unanswerable. This case was tried in the court below before the opinion in the Randle case was written. Reversed and remanded. Reversad and remanded. The Reporter will report the facts on the motion to change the venue. Hubt, P. J.