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: 371
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1875.] WALKER V. THE STATE. 371
Opinion of the Court.
"satisfied, beyond a reasonable doubt, from all the testimony
"adduced, that the means used by the defendant were likely to
"kill or do great bodily harm, and the circumstances connected
" with the homicide manifested a fixed design to kill, although
"it may have existed but for a moment, and it is not otherwise
"shown that the act was the result of rash, sudden impulse or
"passion, then the jury will return their verdict guilty of
"murder in the first degree, and assess the punishment to be
" either death or punishment in the penitentiary for life."
It often happens that facts are assumed as true, in a charge,
without any prejudice to the accused. For instance, in this
case, had it been assumed that Butler was killed by a pistol
shot, it could not have injured the defendant, for that was a
fact about which there was no question or doubt, and no effort,
as shown by the evidence, to controvert it. It is very different
where the charge is so shaped as to take it for granted
that the defendant is the person who did the act of shooting,
when that is the only fact in controversy, as exhibited in the
evidence. Being placed prominently in the conclusion of the
principal charge, and being applied to this case directly, in
connection with such facts as would be sufficient to make the
killing murder in the first degree, by the defendant, none of
which additional facts were in controversy at all, it was well
calculated to injure the rights of the defendant." (Paschal's
Digest, Article 3137.) The expression, that if the jury are
satisfied " that the means used by the defendant were likely
( to kill," etc., " the jury will return their verdict of murder
"in the first degree," indicated the opinion of the judge as
plainly, and much more injuriously than if it had been directly
expressed, under all the circumstances of the case.
The charge of the court, that dying declarations were
: worthy of the same credit as other evidence," was also objectionable
as a charge upon the weight of evidence. The rule
of law is, that such declarations, though not under oath, are
admissible evidence; but there is no rule of law that determines
their weight in comparison with other evidence, as the
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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/m1/379/: accessed April 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .