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: 366
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866 WALKER V. THE STATE. [Term of
Argument for the appellee.
charge on the weight of that evidence, as having anything to
do with the verdict, and that, too, when the court say that it is
only entitled to the same credit as other evidence, and afterwards
tell the jury that they are the judge of the credibility of all
the evidence, and, at the instance of the defendant, specially
admonish the jury of the peculiar infirmity of men who are
dying, and who may only think a thing' to be true when it
really is not.
Read the charge as given at the request of defendant: " They
"(the jury) are to consider the circumstances under which the
c; declarations of the deceased were made, and what was the
" condition, mental and physical, of the deceased at the time,
" whether he was in a condition to know the facts, and whether
"they have been disclosed as they really were, or only as
"seemed to him to be; and, in coming to your conclusion, will
weigh all the facts, as well those proved by the defendant as
" those proved by the State, and if; from the testimony ad"duced
by the State or by the defendant, or of all taken
"together, a reasonable doubt arises in your mind, spring"ing
out of the testimony as to the identity of the person
" or persons engaged in the homicide, then you should give
the defendant the benefit of the doubt and find him not
' Third. It is a rule of evidence that dying declarations are
"to be admitted without the sanction of an oath taken by the
"deceased, are to be judged of and weighed by the jury, with
"all the other in the case, and if upon the whole testimony
" there arises out of it a reasonable doubt as to the identity of
" the person or persons committing the homicide, then it would
"be your duty to acquit him."
And again. "That the burden of proof is at all times upon
"the State, upon the plea of not guilty, to establish the guilt
"' of the accused beyond a reasonable doubt, and if, in consid"
ering all the facts in proof, as to time, distance, and locality,
i and all other facts in proof, whether made by the State or
"defendant, there arises in your mind a reasonable doubt as
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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/m1/374/: accessed May 23, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .