1. Change of Venue — Controverting Affidavits. — On a motion for change of venue, where the State had filed controverting affidavits attacking the credibility and means of knowledge of the compurgators, Held, that the filing of additional affidavits by the State denying the truth of the facts set up in the motion and deposed to by the compurgators, while not required by the law (Code Crim. Proc., art. 583), could not impair the controverting affidavits nor injure defendant.
2. Same. — The district attorney is not required to make or sign the controverting affidavits to a motion for change of venue, though be may do so when cognizant of the facts.
3. Same — Prejudice and Combination — Practice on Appeal. — This court, on appeal, has invariably refused to disturb the refusal of the trial court to change the venue in a criminal case where the great weight of testimony on the motion negatives the existence of prejudice or fails to show the existence of the combination of influential persons alleged.
4. Continuance — "Excited Condition" of the Public Mind. — An application for continuance based upon "the excited condition" of the public mind is too vague, and is no ground for continuance.
5. Same. — An application for continuance is properly overruled where it appears that the witnesses named in the application were present at the trial.
DAVIDSON, JUDGE.
Controverting the motion to change the venue, the State filed affidavits of Green, Tevis, and Denman, attacking the credibility and means of knowledge of Rochl and Nussbaum, appellant's compurgators. Additional affidavits were filed by the State denying the truth of the facts set up in the motion to change venue and in the supporting affidavits, which were excepted to by appellant. The exceptions were overruled. While such affidavits may not have been required by law, they did not impair the controverting affidavits of Green, Tevis, and Denman, and we can see no possible injury that could have accrued on account of this having been filed. Nor was it necessary that the district attorney, or some one representing the State, should have signed the controverting affidavits, though he may have done so with propriety had he been cognizant of the facts stated. This may be done by any credible person. Dunn v. The State, 7 Texas Crim. App., 600; Willson's Crim. Proc., secs. 2209, 2210.
The refusal to change the venue was not error. The great weight of the testimony adduced upon the trial of the motion negatives the existence of the prejudice alleged, and the evidence does not show the existence of the combination of influential persons set up. Under such state of case this court has invariably refused to disturb the ruling of trial courts refusing applications to change venue. Willson's Crim. Proc., sec. 2212. Application for continuance was based upon alleged "excited condition of the public mind, as well as for the testimony of certain named witnesses. "Excited condition" is too vague to be considered, and, if fully stated as to details and facts, does not constitute ground for continuance. It might be considered in connection with motion for change of venue. Miller v. The State, 31 Tex.Crim. Rep..
If it be conceded that it might operate as a cause for continuance, the record does not show its probable truth when viewed from the standpoint of the motion for a new trial.
The witnesses mentioned in the application were all present at the trial, one of whom testified in the case, and the remainder were not called on to testify. The continuance was properly refused.
The charge was correct. It submitted every issue suggested by the evidence, and favorably to the defendant. The testimony fully supports the conviction.
Affirmed.
Judges all present and concurring.