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: 264
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264 BARBARA V. THE STATE. [Term of
Opinion of the Court.
It will hardly be contended that where the witness denies,
either tacitly or expressly, the fact of his complicity, but there
is other evidence establishing, or tending to establish it, that the
defendant is not entitled to the benefit of an instruction, on the
hypothesis that the jury may regard the witness as an accomplice.
We have substantially ruled, in the case of Garrett v.
The State, decided at the recent session at Tyler, that where
there is evidence tending to criminate the witness, the question
may be submitted to the jury.
But when the witness, as in this case, only consents to testify
on condition of exemption from prosecution, and is promised
that exemption by the representatives of the State, with the
consent of the court, we think he is treated as an accomplice by
those authorities, and himself consents to assume that character,
and must be so regarded by the court in its charge. It is a
different case from tlhe simple dismissal of an indictment, without
any such bargain or understanding. It is not the fact
that the witness was once indicted which offsets his credibility,
but the fact that he testifies in order to escape prosecution.
This, as well as the moral delinquency involved in actual guilt,
affects the credibility of the witness, and it has been held may
always be inquired into. (Allen v. State, 10 Ohio Stat. 287.)
There is another point which it is proper to notice. Under
the evidence the question was raised whether it sufficiently
appeared that the homicide was committed in Nueces county,
or within four hundred yards of the boundary line of that
county. It is contended that the evidence must establish the
venue beyond a reasonable doubt. That there must be evidence
of the venue, is well settled, and, indeed, elementary; but
we are not sure that the presumption of innocence, which entitles
a party to acquittal in case of reasonable doubt as to his
guilt, has been held to apply to the merely jurisdictional
question of venue. When the fact appears in the course of a
trial that the defendant is not liable to prosecution in the
county where the indictment was presented, the Code of Procedure
requires the jury to be discharged, and that the defend
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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/m1/272/: accessed March 30, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .