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: 360
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360 WALKER v. THE S'ATE. [Term of
attended with circumstances showing an evil and cruel disposition,
and that the design was to kill. The jury have said by
their verdict that the defendant was guilty of murder in the
second degree. The evidence supports the verdict, and the
judgment is affirmed.
ANDREW J. WALKER v. THE STATE.
1. ALIBI-REASONABLE DOUBT. A charge to the jury which assumes that
no evidence of an alibi can avail the defendant (when the evidence of
the State alone would be sufficient to convict), unless it produces conviction
on the minds of the jury, that defendant was not present at
the commission of the offense, but elsewhere, is error.
2. ALIBI-REASONABLE DOUBT. If the evidence of an alibi produces upon
the minds of the jury a reasonable doubt concerning the truth of
the facts constituting the guilt of the defendant, affirmed in the indictment,
it would be sufficient to require an acquittal. Such a doubt
might arise in their minds from the evidence tending to prove the alibi,
and if so, that would be sufficient to render the evidence available to
rebut the affirmative evidence for the State, without their minds ever
having arrived at a conviction, to the degree of a moral certainty, as
to the truth of the allbi.
3, CHARGE OF COURT. On a trial for murder, the following language was
used by the judge in his charge: "If, therefore, the jury are satisfied,
"beyond a reasonable doubt, from the testimony adduced, that the
" means used by the defendant were likely to kill or do great bodily
"harm," etc., "the jury will return their verdict for murder in the
" first degree." Held, where the defense relied on was an alibi, that
such a charge indicated the opinion of the judge as plainly, and much
more injuriously than if it had been directly expressed, and was error,
for which a judgment of conviction should be reversed.
4. CHARGE OF COURT-DYING DECLARATIONS. A charge of the court that
dying declarations were " worthy of the same credit as other evidence,"
is objectionable, as a charge upon the weight of evidence.
5. CHANGE OF VENUE. When an affidavit for a change of the venue of a
criminal cause is made, on the ground of prejudice, with supporting
affidavits, as required by Article 2994 Paschal's Digest, it cannot be
overborne by any number of counter-affidavits of a negative character.
6. CHANGE OF VENUE The discretion given to a District Judge in deter.
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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/m1/368/: accessed April 24, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .