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: 365
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1875.] WALKER v. THE STATE, 365
Argument for the appellee.
Third. That the court erred in instructing the jury that if
the statements made by deceased were made in conformity
with the rules given in the charge, they were "worthy of the
" same weight as other evidence," as charging on the credibility
of a witness, and upon the weight of evidence; citing Lambeth
v. The State, 1 Cushman, 358; 17 Illinois, 17; 1 Green.
leaf on Evidence, Sections 160, 161, 162; 2 Starkie on Ev,
idence, 366, 367.
Fourth. That the charge assumed, as true, facts the jury
should have found, citing Kimbro v. Hamilton, 28 Texas, 566;
Andrews v. Marshall, 26 Texas, 215; Blankenship v. Douglass%
26 Texas, 228, 229; Cobb v. Beall, 1 Texas, 346, 347; White
v. The State, 13 Texas, 133; Brown v. The State, 23 Texas, 202.
Z. C. XMfiemore, for the State, contended:
First. That there was no error in refusing to change the
venue, Winkfield v. State, and Cotton v. The State, 32 Texas.
Second. That the charge, on the whole, was as favorable to
defendant as the facts would allow, and the mere fact of any
particular part not conforming to law in the abstract, affords
no reason why the court should reverse, citing Henderson v.
The State, 12 Texas, 531; Robinson v. The State, 15 Texas,
311; O'Connell v. The State, 18 Texas, 343; Monroe v. The
State, 23 Texas, 216; Daniels v. The State, 24 Texas, 389;
Johnson v. State, 27 Texas, 766.-ContinuingThe
truth is, as shown by the record, that the jury were
obliged to convict Andrew Walker unless they believed that
Mrs. Butler, Joe White, and Effie Lewis were deliberate perjurers,
because they each swore that Green Butler told them
(whilst perfectly sane, and they stated how they knew he was
sane to the satisfaction of the court and jury) that Andrew
Walker had killed him, and they testified as to the manner
of the killing, as they saw it themselves. Unless, forsooth, it
be argued that Green Butler went from this world into eternity
with a falsehood on his lips, because it is not possible, under
the proof, that he was mistaken. And then, to talk about a
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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/m1/373/: accessed July 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .