Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 376
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376 WALKER v. THE STATE. [Term of
Opinion of the Court.
is here made to the case cited, for the general views of the
court upon the subject, without repeating them here. We
think the discretion given to the District Judge in determining
the merits of the application is a judicial and not a personal
discretion, and that therefore his action may be revised
by this court on appeal, when properly presented by a bill of
exceptions, as is done in this case. It may be very difficult to
lay down in advance any general rule by which this court
would be governed in passing upon the judgment of the court
below, further than that we should presume it to be right, as
in other cases, unless the contrary is made to appear, with
reasonable certainty, in the record. If. however, a mode has
been adopted and alone relied on, in determining the credibility
of the persons supporting the application, and the truth and
sufficiency of the cause set out for the change of venue, is not
competent to attain the object of the investigation, and will, if
permitted,-have the effect to defeat the object of the law itself,
this court may well revise and reverse the action of the court
below, founded upon such mode of proceeding.
This case falls under that rule. Supposing the three persons
supporting the defendant's application to be credible, which
we must, as their credibility was not attacked, the law had
been complied with, which, prima face, gave him the right to
have the venue changed. If that is allowed to be resisted and
overborne by counter affidavits of a negative character, such as
that in this case, made by a number of persons, the determi.
nation of his right to a change of venue would descend into a
struggle between him and the District Attorney to get the
greater number. of persons to swear for and against the application;
and the stronger the prejudice against him the more
certain would be his defeat if thus determined.
If the persons supporting the application are not credible
persons, or if the prejudice as sworn to by them does not exist,
it may be shown by the proof of affirmative facts, as well as by
negative evidence, as was done in the case above cited of Winkfield
v. The State. (Texas Reports, 40.) In that case, it was
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/384/: accessed July 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .