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: 369
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1875.] WALKER v. THEr STATE. 369
Opinion of the Court.
dying declarations were admissible, as specified in the Code,
and added thereto, that " if the statements made by the de"ceased
were made in conformity with these rules of law, then
"it is competent testimony, and worthy of the same credit as
"other evidence." In the same connection he charged them
that " an alibi is a species of defense sometimes relied upon in
"criminal cases, and when an accused relies upon it, the affirm"ative
of the issue rests with him; it becomes incumbent upon
"him to maintain it to the satisfaction of the jury, if he would
"enjoy its benefits. It is impossible to convict an accused if
" he was at the time in another and different place than the one
charged in the indictment. The burden of proving that he
" was elsewhere is cast upon him. If the defendant has adduced
evidence to the entire satisfaction of the jury, that on the night
the murder is charged to have been committed, that he was at
"so great a distance therefrom, or the time was such as to make
"it impossible for him to have committed the offense, then the
"defendant must be acquitted. This is a fact for the jury to
"decide from all the testimony elicited in the cause."
This charge was well calculated to convey the idea to the
jury that the case of the State was made out by the dying
declarations "worthy of the same credit as other evidence,"
subject to being defeated alone by the defendant proving, beyond
a reasonable doubt, or to a moral certainty, or " to their
" entire satisfaction," that it was not possible for Walker to
have been at Butler's when he was killed. It makes an alibi
a defense in the nature of a plea of confession and avoidance
in a civil suit; whereas it is not a defense at all in any other
sense than as rebutting evidence tending to disprove the fact
alleged in the indictment, that Walker killed Butler, the burden
of proving which allegation rests on the State throughout
the whole trial, and cannot be changed, so far as the action of
the jury upon the evidence is concerned, by anything short of
an admission upon the record, if such a thing would under any
circumstances be a proper proceeding. For notwithstanding
the failure of a plea of autrefois convict, the law does not de24
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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/m1/377/: accessed March 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .