Henry Shamburger v. The State, 24 Tex. Ct. App. 433

Willson, Judge. This prosecution was instituted in Hunt county, but on motion of the defendant the venue was changed to Kaufman county, and the conviction was had upon a trial in the latter county. On the trial the State, over defendant’s objections, read in evidence to the jury the order of the. district court of Hunt county changing the same. This order recites that there exists such a prejudice against the defendant in Hunt county that he can not get .a fair trial, and that there is a combination of influential persons against him in said Hunt county. It was error to admit said order in evidence.

It was wholly irrelevant to the issue on trial. It was merely a record of the court showing the jurisdiction of the district court of Kaufman county over the case. It was not. a matter of evidence for the jury, but for the court alone. There was no issue as to the jurisdiction of the court over the case to be determined by the jury, save the simple one of the commission of the offense in Hunt county.

It was the province and duty of the court, alone, to determine the question of the jurisdiction of the district court of Kaufman county to try and determine the case, An instruction to the jury that the venue of the cause had been changed from Hunt to Kaufman county, and that, if the proof showed the offense was committed in Hunt county, the venue was sufficiently proved, was all that was necessary, and all that was proper with reference to the matter of jurisdiction. A complaint upon which an information is based is not admissible evidence for the State.

Even the information or indictment in a criminal case can not be used as evidence of the facts charged therein. They only serve the purpose of pleadings. So, an order changing the venue in a criminal cause only serves the purpose of transferring the cause to another jurisdiction, and furnishes to the court of such other jurisdiction evidence of its authority to try said cause. It is for no purpose competent evidence to go before the jury. (Long v. The State, 17 Texas Ct. App., 128.) Evidence, to be admissible, must relate to facts in issue, and to relevant facts.

In this case the fact in issue was the guilt of the defendant of the crime with which he was charged. The order changing the venue in the cause in no way related to that issue. It tended in no degree to prove or disprove said issue. But, notwithstanding its irrelevant character, its recitals were well calculated to prejudice the minds of the jury against the defendant. Hunt county was the home of the defendant, and the county in which the alleged offense was committed.

The order showed that it was upon his motion that the cause had been transferred for trial from the county of his home; from the people among whom he resided, and who were acquainted with him, to another county, and upon the grounds that in his own county, and among those best acquainted with him and with the facts of the alleged crime, there existed against him such a prejudice as would prevent him from having a fair and impartial trial in said county, and that there existed against him in said county a combination of influential persons, etc.

A recital of these facts to a jury would naturally and certainly prejudice their minds against the defendant. A defendant is entitled to a verdict on competent evidence, and the admission of incompetent evidence, such as might influence a jury, requires a conviction to be set aside, even though there be sufficient legal evidence to sustain it. (Draper v. The State, 22 Texas Ct. App., 404.) Furthermore, the error of admitting the incompetent evidence referred to was intensified by the comments thereon of the State’s counsel in his concluding argument to the jury.

These errors were not and could not be cured by the instruction of the court to the jury not to consider the fact that the venue had been changed. (Myers v. The State, 6 Texas Ct. App., 19.) .With respect to other evidence admitted over defendant’s objections, we do not think any material error was committed. In one particular we think the charge of the courtis erroneous.

In charging upon the defendant’s theory that the deceased killed herself, the language of the charge is as follows : “If from the evidence you believe that Anna Smith took her own life, that the fatal shot which deprived her of life was not fired by the defendant, but by her own hand, or by any other means than the act of the defendant, then he is not guilty and you should so find.” This paragraph of the charge in effect devolves upon the defendant the burden of proving his innocence.

It requires the jury to believe from the evidence that he was not guilty; that he did not kill the deceased; but that deceased killed herself. The instruction should have been that if, from all the evidence, the jury entertained a reasonable doubt whether defendant killed the deceased, or whether the deceased killed herself, they would acquit him. (White v. The State, 19 Texas Ct. App., 158; Humphries v. The State, 18 Texas Ct. App., 309; Jones v. The State, 13 Texas Ct. App., 14; Dubose v. The State, 10 Texas Ct. App., 253.) Opinion delivered December 14, 1887.

Because of the errors we have discussed, the judgment is reversed and the cause is remanded. Reversed and remanded.