1. Change of Venue — Sufficiency of Transcript and Clerk's Certificate Thereto. — It is provided by article 585, Code of Criminal Procedure, that "when an order for 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." Held, that no particular form of certificate is prescribed by the statute, nor does it require a caption as part of the transcript. It is only required that the orders which have been made shall be certified. The number of pages containing such orders constitute no part of the same.
2. Same — Recognizance of Witness. — The transcript on change of venue omitted the recognizance of a recognized witness. Held, on motion to strike out the transcript, that the authority of the court to supply the omission should have been invoked, which was ample. It further appearing that the witness involved in the recognizance was present at the trial, no possible injury could have accrued to the defendant. The motions were properly overruled.
3. Continuance. — The application for a continuance not only shows total want of diligence, but it further appears from the other evidence that the proposed testimony was not true. Held, that the continuance was properly refused.
4. Manslaughter — Charge of Court. — The causes which reduce a killing from murder to manslaughter must be those which operate on the mind of the slayer at the time of the homicide, and the charge of the court should be confined to the cause or causes which are shown to have created the passion. It would be erroneous to charge upon a state of facts which could not possibly have operated upon or influenced the mind of the defendant at the time of the homicide.
5. Same — Insulting Conduct to Wife of Accused — Resistance to Arrest. — Where the wife testified that her husband had informed her that he had met deceased several times after she had informed him of the insulting conduct toward her prior to the homicide, held, that manslaughter predicated upon such insults was not involved in the case; and further, that there being no evidence that at the time of the homicide the defendant as sheriff was seeking to arrest deceased, the court did not err in refusing to charge the law with reference to such supposed state of facts.
6. Error in Charge to Defendant's Benefit. — The court in its charge upon manslaughter having instructed upon a theory of the defense which was not really involved in the case, and which redounded to defendant's benefit, and doubtless induced the infliction of a milder punishment, he can not be heard to complain.
7. Preliminary and Prefatory Statements in Charge of Court. — In the prefatory paragraph of the charge the court stated to the jury the nature of the accusation against the defendant, and added in that connection, "and in determining the defendant's guilt or innocence of said charge I give you the following instructions," etc. It was objected to the language used, that it submitted the defendant's "innocence" as an issue in the case. Held, that the objection was not well taken, the preliminary statement not being a part of the charge of the law properly applicable to the case. McGrew v. The State, ante, p. 336. 8. Competency of Witness of Tender Years. — On a trial for murder it was objected to the competency of a witness (a boy who at the time of the trial stated that he was then thirteen years of age), that he was too young, and not of sufficient intelligence to understand the nature and obligation of an oath. But held, that the record disclosing the witness to be an intelligent person, with capacity sufficient to understand the nature and obligation of the oath administered to him, he was properly held competent to testify on the trial.
9. Charge of Court — How Construed. — In a construing a charge of the court all of its provisions must be considered together; and if, taken as a whole, the charge sufficiently presents the law of the case, it will be sufficient. See this rule applied where an objection to the court's instruction in relation to homicide committed in discharge of official duty was "that it excluded the theory of the defense that the homicide was committed in defense of a female relative, and on the first meeting after the insult;" and furthermore, because "such instruction intimated that the court did not believe such testimony of the defense upon the latter theory." The objections were properly overruled as not maintainable.
10. Requested Instruction — Self-Defense. — In the absence of evidence which justified the theory that the deceased made an attack on the defendant, the court did not err in refusing a special requested instruction submitting the theory of self-defense based upon such a supposed state of case.
11. Improper Remarks of Counsel — Practice with Regard to. — See the opinion for remarks imputed to counsel which if used were legitimate, but if improper and calculated to injure defendant's rights devolved upon him prompt exception and contemporaneous motion for withdrawal from the jury. In default of such exception and motion defendant can not complain on appeal.
12. Murder of the Second Degree. — See the statement of the case for evidence held sufficient to support a conviction for murder in the second degree.
DAVIDSON, JUDGE.
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.
1. The 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 a 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 complete and correct 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. The State, 6 Texas Ct. App. 286[ 6 Tex. Crim. 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 in 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 such 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 the defendant as sheriff, for unlawfully carrying a pistol. It is also insisted that the law of manslaughter should also 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 did create "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 toward 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 conclusion that the killing was not brought about by resistance to arrest, nor on account of deceased's insulting conduct towards appellant's wife. The facts disclose that defendant rode rapidly to where deceased and a friend or two were sitting on the gallery of the postoffice building. Seeing defendant approaching them, and anticipating trouble, they moved away. The deceased fled into the postoffice, and his friends in different directions. Defendant jumped from his horse, followed deceased into the postoffice, and pulling his pistol as he entered the room, remarked to deceased, "You damned son-of-a-bitch," or "You God damned son-of-a-bitch, I have got you," and began firing upon deceased just as he escaped through an inner door into the postoffice apartment of the building. He then went to the money order window of the office, and through it shot deceased several times, and after so shooting him, retired from the building, mounted his horse, and rode off. The parties had had some previous difficulties because of an item published in a newspaper edited by deceased, reciting the fact that a gaming case against defendant had been dismissed from the docket of the court.
The law of manslaughter was not involved in this state of case, nor in any of the facts adduced in evidence. The error of the court in giving in charge the law of manslaughter upon the theories mentioned in the instructions redounded to defendant's benefit, and doubtless induced the verdict inflicting the milder punishment of murder in the second degree, when the facts would have supported the heavier punishment for murder in the first degree. But of this he can not be heard to complain, and in fact does not complain.
4. In writing his charge, the court, before giving the instructions proper, stated the nature of the charge against defendant to the jury, and in this connection further said: "And in determining the defendant's guilt or innocence of said charge, I give you the following instructions as the law applicable to the case, and by which you must be governed." It is contended that the above statement of the nature of the case submits the defendant's innocence as an issue in the case. The point is not well taken. It was not a part of the charge, but simply a preliminary statement of the nature of the accusation against defendant. McGrew v. The State, ante, p. 336.
5. The witness Bert Brice is not shown to have been an incompetent witness. By the record it appears that his capacity was sufficient to understand the nature and obligations of the oath administered to him as a witness, and his evidence discloses him to have been an intelligent witness.
6. The court charged the jury, among other things, in appropriate terms, that if defendant sought, without having a warrant for that purpose, to arrest deceased for unlawfully carrying a pistol, and deceased resisted such arrest, and "it became necessary for him to kill deceased to prevent injury to himself, and you believe from the evidence that defendant killed deceased in the discharge of his official duty to arrest him, then you will acquit the defendant." The court further charged upon this subject, and in immediate connection with the foregoing paragraph, "that if he was not actuated by an intent to arrest deceased for a violation of the law, and if you do not believe that defendant killed deceased in his own self-defense, as hereinbefore charged, and you do believe that defendant killed deceased with his malice aforethought, express or implied, then the defendant will be guilty of murder in the first or second degree, as the evidence will show, subject, however, to the following instructions." Then immediately followed the law upon manslaughter, based upon the insulting conduct of the deceased towards the wife of defendant.
The charge quoted is objected to, because "it excludes the idea of the theory of the defense that the homicide was committed in the defense of a female relative on the first meeting after the insult to the wife;" and because by such instruction the court intimated that he does not believe the testimony of the defense upon that theory of the case.
These objections are not well taken. On the contrary, the charge in relation to the question of arrest is given expressly subject to the charge on manslaughter, with reference to the insulting conduct and language mentioned. In construing a charge all of its provisions must be considered together, and if, taken as a whole, the charge sufficiently presents the law of the case, it will be sufficient. Again, as before stated, the facts did not call for either of the charges submitting the issue of manslaughter, nor do they call for a charge on this phase of the law from any view of the evidence; and inasmuch as such charges were given, they doubtless influenced the jury to impose the milder punishment for murder in the second degree, and were therefore beneficial to the defendant. The charge given was more favorable to the defendant than the facts required or authorized.
7. The court did not err in refusing the special requested instruction submitting the theory of self-defense from the standpoint that the deceased made the attack on defendant. There is no evidence in the record before us to justify such a charge.
8. Defendant's bill of exceptions No. 4 recites that S.P. Huff, of counsel for the State, during the trial, to the jury said: "The defendant is a murderer in cold blood, an assassin. He applied to the court for bail and was refused; and if this evidence is true, why did he lie in jail since last December and not make use of it?"
The court refused this bill, because he did not hear the language imputed in which counsel called defendant a murderer and an assassin, and his attention was not called to it by defendant or his counsel. Further explaining this matter, the court says: "Attorney Huff did not say that defendant had applied for and was refused bail, etc. But this remark was made in discussing the weight which should be given to the testimony of defendant's wife, who testified, without objection, that she was present in court when defendant applied for and was refused bail, but she did not testify on his trial for bail. Defendant's counsel made no objection at the time to the above remarks of attorney Huff." Recurring to the statement of facts, it is recited that the defendant's wife testified: "There have been two habeas corpus trials trying to get bail before now. My husband was denied bail. My husband was allowed bail on the first habeas corpus trial, but not in the second application after indictment. Yes, I knew these facts all the time, and was present in court when my husband was tried on habeas corpus, but did not testify; and my husband was refused bail and has been in jail for six months, and I have never told any one except as above mentioned." If the remarks imputed to counsel with reference to this testimony were used, they were legitimate; but if the remarks were improper and calculated to injure defendant, prompt exception should have been interposed and necessary requests made looking to their withdrawal from the jury, which was not done. Young v. The State, 19 Texas Ct. App. 536[ 19 Tex. Crim. 536]; Kennedy v. The State, Id., 618; Weathersby v. The State, 29 Texas Ct. App. 278[ 29 Tex. Crim. 278]; Rahm v. The State, 30 Texas Ct. App. 310[ 30 Tex. Crim. 310]; Williams v. The State, 30 Texas Ct. App. 354[ 30 Tex. Crim. 354]; Tipton v. The State, 30 Texas Ct. App. 530[ 30 Tex. Crim. 530]; Gonzalez v. The State, 30 Texas Ct. App. 203[ 30 Tex. Crim. 203]; Frizzell v. The State, 30 Texas Ct. App. 42[ 30 Tex. Crim. 42]; Willson's Crim. Proc., sec. 2321.
We can not concur with counsel that the verdict is unsupported by the testimony. On the contrary, the evidence before us would have justified a verdict imposing a higher punishment, and even a conviction for the higher grade of the offense charged. Finding no error requiring a reversal, the judgment is affirmed.
Affirmed.
Judges all present and concurring.