Wolfforth v. State

• Decision Date: 17 December 1892
• Citation: 20 S.W. 741
• Court: Texas Court of Criminal Appeals
• Parties: WOLFFORTH v. STATE.

20 S.W. 741

WOLFFORTH v. STATE.

Court of Criminal Appeals of Texas.

December 17, 1892.

Appeal from district court, Wilbarger county; G. A. BROWN, Judge.

Pat Wolfforth was convicted of murder, and appeals. Affirmed.

G. W. Walters and Hare, Edmundson & Hare, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was indicted in Hall county for murder. At the May term of the district court of that county the judge of his own motion transferred the cause on change of venue to Wilbarger county. When his case was called for trial in the latter county, appellant moved to strike out the transcript sent from the district court of Hall county to the district court of Wilbarger county, because it did not contain either a sufficient caption or certificate, and because it did not contain all the orders made and entered in the district court of Hall county, in that it omitted the recognizance of a witness, who had been recognized as such in that county. The same questions are raised in a plea to the jurisdiction of the district court of Wilbarger county. These motions were overruled, and will be treated together.

This statute provides: "When an order for a change of venue has been made, the clerk of the court where the prosecution is pending shall make out a true transcript of all orders made in the cause, and certify thereto under his official seal, and shall transmit the same, together with all the original papers in the case, to the clerk of the court to which the venue has been changed." Code Crim. Proc. art. 585. The statute prescribes no particular form for the certificate of the clerk, nor does it require a caption as part of the transcript. The objection to the certificate is that it fails to state the number of pages contained in the transcript. While, perhaps, it may be the better practice to include a caption in such transcripts, as well as insert the number of pages to which such certificate is attached in such certificate, still such omission will not be fatal. Under the statute it is only required to certify the orders which have been made. The number of pages does not constitute any portion of such orders. The court did not err in overruling both pleas. Had it become necessary to have the omitted order, the district court of Wilbarger county was not without authority to supply its omission; and, if desired, this power of the court should have been invoked to obtain it. The court has a right to have a correct and complete transcript of all the orders entered in the court from which the cause is transferred, and is not without authority to secure the same. It is not shown why this order was desired, or even that it was desired. It could only be useful in connection with and affecting the question of diligence to secure the attendance of the witness at the trial, and to place the recognizance in court for the purpose of forfeiture in case of his default to so appear. To this it may be answered that the witness appeared at the trial, and no injury is made to appear, and none sought to be shown. Brown v. State, 6 Tex. App. 286.

2. Appellant presented his application for continuance on account of the absence of several witnesses, all of whom appeared at the trial, except Lineberger, and for him there was no pretense of diligence. In explaining the bill of exceptions taken to his action overruling this application, the court said, with reference to the evidence of this witness: "I have twice heard the testimony in this case on defendant's application for bail. I am of opinion that the allegations as to what defendant would prove by said witness are not true." From an inspection of the record, we concur with the judge in this view of the matter. The court did not err in refusing the continuance.

3. The court charged the law of manslaughter applicable to a state of case involving insulting language and conduct by deceased towards the wife of appellant, as well as to a supposed state of case showing deceased's resistance to an attempted arrest, sought to be made by defendant as sheriff, for unlawfully carrying a pistol. It is also insisted that the law of manslaughter should have been given with reference to a combination of circumstances occurring prior to and at the time and scene of the difficulty, which were capable of creating, and may have created, such "passion" as would reduce the killing from murder to manslaughter. We do not concur in this view of the testimony. It is too well settled in this state to be questioned that when the law of the case has been given in charge it is sufficient. This applies as well to manslaughter as other grades of homicide. The causes which reduce a killing from murder to manslaughter must be operative in the mind of the slayer at the time of the homicide in order to bring the killing within the purview of our statutes relating to that offense. The passion must not only exist, but the "cause" relied on must also be shown, and the charge should be confined to the "cause" or causes which are shown to have created the passion. An instruction upon matters not shown by the evidence is not required, and should not be given. If defendant killed the deceased because of insulting conduct towards his wife, it would be difficult to perceive why the court should be required to charge with reference to "adequate cause," produced by "an assault and battery causing pain or bloodshed." It would be equally as hard to understand why the law applicable to another phase of manslaughter than that made by the testimony should be charged. It would be equally as incomprehensible to understand why the law applicable to any nonexisting state of facts should be required in the charge. Such absent facts could not possibly operate upon or influence the mind of a defendant at the time of the homicide, and a charge thereon could not be "the law of the case." Although given by the court, the law of manslaughter, with reference to insulting conduct by deceased towards appellant's wife, was not involved in this case, because the wife, who alone testified in regard to the insults, also swore that defendant had informed her of the fact that he had met deceased several times subsequent to being informed of such conduct, and prior to the homicide. Nor was the charge with reference to deceased resisting arrest called for, because the testimony excluded such a theory. While it is true that defendant was sheriff of the county, there is not the slightest evidence tending to convey the idea that he was seeking to make, or that deceased was resisting, such arrest. The acts, conduct, and declarations of defendant at the time of the homicide, taken in connection with prior occurrences, discard such theories, and lead to the...