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: 373
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1875.] WALKER v. THE STATE. 373
Opinion of the Court.
cedent, as, in the case of perjury, they cannot find the defendant
guilty, although satisfied fully of the guilt, unless their
belief is founded on the testimony of two, or what is equal to
two witnesses. But the law allows no such artificial rule as to
what degree of proof shall exist before a reasonable doubt can
be allowed to arise in and control the minds of jurors in the
trial of a criminal cause. (Paschal's Digest, Article 3108.)
A charge upon the weight of evidence is not necessarily a
ground for reversal, unless it appears, by a bill of exceptions,
that it was objected to at the time it was given, so as to enable
the district judge, as we may presume, to correct it, or withdraw
it from the jury if he should think proper to do so.
(Paschal's Digest, Articles 3059 and 3067.)
If the defendant fails to make such exception, he may still
make it a ground for a motion for a new trial, and then if it
appears that such charge upon the weight of evidence is so
flagrant, and on a matter in issue of vital importance, so as to
make it not only an error, as it must be-being contrary to
law--but also a "( material error calculated to injure the rights of
" the defendant," then it will be a good ground for a new trial,
the refusal of which, if made on such ground, will authorize
this court to reverse the judgment of conviction in a case of
felony. (Paschal's Digest, Article 3137.) When such error is so
material as to require a reversal must be a matter of sound
discretion and judgment, as there can be no fixed rule applicable
to the facts of every case. In this case, the two most material
facts were, the truth of the dying declarations, the weight
,of which as evidence the judge defined without any legal
authority for doing so; and the fact that Walker was the man
who shot Butler, which the court inferentially assumed as an
established fact. Surely this must be a most material error, if
it be true that the Constitution and laws of this State guarantee
to every man an impartial trial by a jury of the country,
according to the law of the land. If the judge may directly or
indirectly give his opinion to the jury as to the weight they
should attach to particular evidence, and assume facts to be
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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/m1/381/: accessed August 19, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .