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: 368
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368 WALKER V. THE STATE. [Term of
Opinion of the Court.
" the rights of the defendant." (Paschal's Digest, Article
The charge of the court in this case develops the principles
of the law of homicide from murder in the first degree down
to justifiable homicide, with all of the intermediate degrees, so
that the charge itself does not indicate with any certainty what
was the character of the transaction under investigation. This
superfluity might be, and often is, harmless, where it appeared
evident that it was not calculated to mislead, or prejudicially
confuse the minds of the jury in the discharge of their duty.
But where the court misdirects the jury as to the law relating
to the material facts which are involved in the transaction, as
shown by the evidence, then such error enters into the verdict
as one of the elements of its production.
Without any critical examination of the numerous irrelevant
charges, and of the injurious effects they may have been calculated
to produce, it will suffice to notice those erroneous
charges that applied directly to the facts of the case.
And in order to appreciate their full force, it may be proper
to state, in advance, that the evidence showed without any dispute
or doubt that Green Butler was shot and killed in his
own yard by some person, the act being planned beforehand
and deliberately performed without any known justification,
excuse, or palliation-a plain case of assassination-and the
only fact in dispute as exhibited in the evidence was, whether
or not Andrew J. Walker was the man who shot him. The
State assumed by the charge in the indictment that he was the
man. He, by his plea of not guilty, said he was not. The
affirmation of the issue and the burden of the proof of that
fact was on the State.
The dying declarations of Butler identified Walker as the
man, to rebut which evidence was adduced tending to show,
and for the purpose of showing, that he was somewhere else
and not at Butler's at the time of the killing.
In reference to the issue thus presented by the evidence, the
court instructed the jury as to the rules of law under which
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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/m1/376/: accessed May 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .