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: 374
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374 WALKER V. THE STATE. [Term of
Opinion of the Court.
proved that are contested by the evidence, and thus infuse into
the minds of the jury his judgment as to the material matters
in controversy, the conclusion arrived at is not their own
The law of this State, as contained in the Code, is as plain as
it can be written in separating the duties of the judge and of
the jury, and in defining exactly the respective duties of each
in a criminal trial, all in harmony with and to carry out that
provision of our Constitution which declares that " the right of
" trial by jury shall remain inviolate." (Paschal's Digest, Article
" The only mode of trial upon issues of fact in the District
" Court is by a jury of twelve men, unless in cases specially
"' excepted." (Paschal's Digest, Article 3007.)
" The jury are the exclusive judges of the facts in every crinm"
inal cause, but not of the law in any case. They are bound
"to receive the law fiom the court and be governed thereby."
(Paschal's Digest, Articles 3058, 3108.)
On the other hand, the judge is required, in cases of felony,
to deliver to the jury a written charge, in which he shall distinctly
set forth the law applicable to the case, and he is positively
prohibited from expressing any opinion as to the weight
of the evidence, from summing up the testimony, from discussing
the facts, or using any argument in his charge calculated to
arouse the sympathy or excite the passions of the jury; which
closes with the emphatic expression: "It is his duty to state
"plainly the law of the case." (Paschal's Digest, Articles
The law contemplates that each branch of the court will be
competent to the task imposed-the judge to charge the law,
and the jury to weigh the evidence and find the facts-and that
each will strictly confine itself within its prescribed province in
the administration of the law.
If the jury may disregard the charge of the judge as to the
law given them, and if the judge may assume material facts in
issue to be proved, charge upon the weight of evidence, in
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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/m1/382/: accessed July 27, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .