Walker v. State

• Citation: 37 Tex. 366
• Parties: A. J. WALKER AND JEFF BLACK v. THE STATE.
• Decision Date: 01 January 1872
• Court: Supreme Court of Texas

37 Tex. 366

A. J. WALKER AND JEFF BLACK

v.THE STATE.

Supreme Court of Texas.

1872.

1. When the facts of a case require a knowledge on the part of the jury of the different classes or kinds of evidence, it is the duty of the court to charge them in general terms as to the distinguishing characteristics of those different kinds, and the credit which under ordinary circumstances may be placed upon evidence of either class; but under our statute the court will not, as a general rule, be authorized to refer the jury to any particular evidence before them, and characterize it as the highest or other degree of evidence.

2. On the trial of a murder case, the court below instructed the jury that dying declarations are evidence of facts, upon the ground that “statements are worthy of more credence when made under such circumstances than if made under the sanctity of an oath duly administered according to law;” and then, after reciting some of the rules regulating the admissibility of dying declarations, added, “if these facts appear from the evidence under the foregoing rules of law, it becomes the highest testimony known, and must receive full faith and credit by the jury.” This is held to be erroneous; first, as being a charge upon the weight of evidence, and secondly, as raising hearsay evidence to the highest testimony known. Dying declarations are admitted in evidence as an exception to the general rule regulating the admissibility of hearsay evidence, and it is the province of the jury alone to say what credence shall be given it.

3. It is the province of a judge to say what evidence shall be admitted to the jury; but, after it is admitted, its credibility is entirely within the province of the jury.

4. The court below instructed the jury that “an alibi is a species of defense often set up in criminal cases, and one which seems to figure in this case.” Held, that this language was well calculated to convey to the jury the impression that the court regarded that particular defense as a pretense, without foundation in truth, and therefore is erroneous.

5. Whenever an alibi is pleaded in defense to a criminal prosecution, it devolves upon the defendant to establish that defense to the satisfaction of the jury.

6. When a jury in a criminal case violates Article 3070, Paschal's Digest, which prohibits them from separating during the trial, excepting under certain restrictions, their verdict should not be sustained by the court.

7. Allowing jurors in a criminal case to have access to newspapers containing imperfect or incorrect accounts of the trial will vitiate their verdict.

APPEAL from the Criminal Court of Galveston county. Tried below before the Hon. Sam. Dodge.

The defendants were indicted by the grand jury of Galveston county, for the murder of Green Butler. The facts of the case are substantially as follows: On the 19th of May, 1872, between seven and eight o'clock in the evening, while Green Butler and Joe White were standing on the gallery at Green Butler's residence, they having just stepped out from the supper table, two men rode up to the front gate of the yard around Butler's residence, and one of them asked if they could get supper. Green Butler, the deceased, replied “Certainly, light and come in.” The two men dismounted, and while they were hitching their horses to the fence near the gate, the deceased stepped off of his gallery and walked towards the gate where the men were standing; one of the men discharged a pistol and Green Butler fell; the two men then mounted their horses and rode rapidly away. Joe White, who was standing with Butler on his gallery when the parties rode up, and Mrs. Butler, the wife of the deceased, immediately went to him, and in answer to the questions, “Are you dead?” and “Who killed you?” asked him by his wife, Butler replied, “Yes, Annie, Andrew Walker killed me; little Isham was with them;” and in answer to the question, “Are you dead?” asked him by White, he replied, “Yes, Joe, Andrew Walker killed me; little Isham was with them; I did not know the other or others,” and then requested White to turn him over, and in a few minutes he expired. Butler was perfectly conscious up to his death, and spoke positively as to its being Andrew Walker who shot him. In a short while after Butler's death, Isham and several of the neighbors came up to Mrs. Butler's residence. It appears that Isham was camping a short distance from Butler's, and his provisions giving out, he rode up to Butler's on the evening of the killing to get something to eat, and rode his horse in between the horses of the other two men just as the pistol was discharged; his horse took fright at the discharge of the pistol, and ran away with him. For some time previous to the killing of Butler, Jeff Black and Andrew Walker had been a great distance removed from the residence of Green Butler, but had been seen in that neighborhood by several parties the evening before the killing, Andrew Walker riding his large dun horse and Black riding a sorrel horse. A few minutes before the killing, two men were seen about one mile distant from Butler's house, traveling in that direction. One of them was riding a large dun horse, which the witness recognized to be Andrew Walker's horse; the report of the pistol was heard a short while afterwards, and about the time these two men might have reached Butler's place; and immediately thereafter the witness heard the clatter of horses' feet, as the parties ran away from Butler's residence, where the homicide was committed. It also appeared in evidence, that one of the men who did the killing was riding a dun-colored horse. The defendants relied principally upon a plea of alibi. The killing took place between seven and eight o'clock P.M., on the 19th of May, 1872, some of the witnesses thought nearer eight than seven; the evidence introduced to establish the plea of alibi proved that the defendants were in camp at Summit, some seven or eight miles distant, at a quarter past eight that evening. The State proved that the same distance had been ridden, since the killing, in twenty minutes. There was no evidence of a previous difficulty between the parties.

The defendants were convicted of murder in the first degree, and the death penalty assessed against Andrew Walker, and imprisonment in the penitentiary for life against Jeff Black.

The motion for a new trial being overruled, the defendants appealed, assigning for error the instructions of the court to the jury, and error in court below in overruling defendant's motion for a new trial on account of misbehavior of the jury.

Willie & Cleveland, for the appellants. The accused, upon the plea of not guilty, were entitled, under the law, to the benefit of any reasonable doubt arising upon the evidence, and the burden of proof was at all times upon the State to show their guilt. The “ alibi” which the judge in the court below told the jury in his charge seemed “to figure somewhat in the case,” was simply a chain of facts testified to, consisting of references to time and place and distance, and the movements and presence of the accused, proven as well by the witnesses for the State as for the defense, tending to negative the conclusion of their guilt. The court below charged the jury in effect, that by this method of defense, the burden was upon the accused to prove their innocence, to the exclusion of a reasonable doubt. The law is not that way. Justice Ogden, in delivering the opinion of the court, in the case of Field v. The State, 34 Texas, 41, says: “It is one of the fundamental principles of the criminal law of our State, that innocence is presumed until guilt is proven. Under our statutes, a defendant is not compelled to plead at all, nor make any defense, and yet the State must prove every material allegation constituting the offense.”

“A defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence; and in case of reasonable doubt as to his guilt, he is entitled to be acquitted. It is for the jury to determine, from all the evidence in the case, as well that given by the defendant as that given by the State, whether from the whole evidence there is such reasonable doubt as to the defendant's guilt, as to entitle him to an acquittal under this provision of the law.” (Dorsey v. The State, 34 Texas, 658.)

The court charged the jury: “It is impossible to convict the defendants if they were at the time in another and different place than the one charged in the indictment. It is incumbent, however, on the defendants, in relying on this defense, to prove the same to be true. The burden of proof devolves upon the defendants, and not upon the State. If the defendants have adduced sufficient proof to satisfy the jury beyond a reasonable doubt, that on the night the alleged murder is charged to have been committed, they were at so great a distance, or the time was such as to make it impossible for them to have committed the crime, then, they must be acquitted.” The charge would have been none the less imperative if the court had added, “otherwise they must be convicted.” This charge is subversive of the fundamental principles of the criminal law of this State. The accused had plead not guilty. They were entitled to the presumption of innocence. The burden of proof is always on the State, no matter what may be the defense. By this charge the accused were required to prove the exact time of the commission of the homicide, of which they were not presumed to know, if innocent, as well as that at that exact time they were elsewhere. The testimony of the witnesses for the State did not fix the exact time of the homicide. One witness said, “at seven o'clock,” another, ““between seven and eight o'clock,” another, “twilight,” another, “just a little after dark,” another, “hardly dark.” We put the question: How was it possible for the accused to prove their whereabouts at the exact time of...