Brown v. State , 23 Tex. 195 ( 1859 )

Roberts, J.

The affidavit for a continuance was not sufficient. The defendant states that he is “informed” that he can prove by one Stucky and others, that there were two other men threatening the life of, and carrying weapons for, the deceased, at and before the time of his death. He neither states the source of his information, so as to enable the court to judge of its reliability, nor does he even state that he believes it to be true, nor does he disclose whether or not he is informed of the names of the persons thus said to have been so threatening.

The evidence on the trial shows that there were two men, who had previously been at enmity with M‘Intyre. Their reconciliation was fully shown; one of them was sworn as a witness, and the other was proved to have left the state. These may have been the persons refered to in the affidavit. It is not probable that a serious difficulty could have existed with two other men, extending to threats and carrying weapons, without M‘Intyre’s neighbors, who were examined, knowing something about it. Had this evidence been given on the trial, according to the information of the defendant, there is nothing proved in the case, which could give it any pertinency or force. So that considered, at the time the affidavit was offered to obtain a continuance, or with reference to the evidence on a motion for a new trial, under the rule laid down in the case of Cooper v. The State, 19 Texas Rep. 449, it was wholly insufficient to induce the court to act upon it.

The point relied on, that the verdict is not warranted by the evidence, cannot be sustained. It would be useless to give a summary of the facts, with their connection and coherence. It will suffice to say, that a train of circumstances have been indisputably established, which lead the mind irresistibly to the conclusion, that a murder has been committed, and that Brown is the guilty perpetrator of it.

It is contended, that the court erred in refusing to give the charges asked by the defendant, and particularly the second and third, which are as follows:—

“ 2d. Circumstantial evidence ought to he received with great caution, especially where an anxiety is naturally felt for the detection of great crimes.”

“ 3d. The jury, upon circumstantial evidence, and where such evidence is less conclusive than the positive and direct evidence of one witness, who testifies to the fact, must acquit the defendant.”

All the charges asked and refused were of a character, similar to those that have been just quoted. They are sentences taken from elementary authors, (Roscoe and Starkie,) in their Commentaries upon the general nature of presumptive evidence. They are intended as directions to aid the mind in arriving at a correct conclusion, and find a place equally appropriate in the philosophic treatises of Paley and Bentham, as in Roscoe and Starkie. They are not rules of law to be obeyed, but of reason, to be considered.

Our law has established, as the test of the sufficiency of the proof, that the concurrent minds of a jury of twelve men, shall be satisfied of the guilt of the prisoner, beyond a reasonable doubt. This test may be explained to the jury as matter of law, but any other test furnished for this, as a substitute for it, or variant from it, would be improper. (Code Crim. Proc., Art. 640.)

Not only is this standard fixed, but the jury are supposed to be adequate to the duty imposed upon them, of arriving at an enlightened conclusion, in applying this test, “ The jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony, except where it is provided by law, that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of weight is to be attached to a certain species of evidence.” (Code Crim. Proc., Art. 643.) The exceptions illustrate the rule.

The jury are the exclusive judges of the weight to be given to every part of the testimony, whether for, or against, the prisoner; unless some part of the testimony has an artificial importance given to it by law, as the act of killing, unexplained, raises the presumption of the existence of another fact,—a malicious intent in the mind of the slayer; or, unless a certain degree of weight is attached to a certain species of evidence, as that “ a conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence, tending to connect the defendant with the offence committed.” (Code Crim. Proc., Art. 653.) It is the duty of the court to instruct the jury upon these legal presumptions and degrees of weight, in particular testimony, constituting exceptions to the general rule ; not because they may be in consonance with enlightened reason and experience, but because they are prescribed as rules of law, pertaining to the weight of evidence. So far only is the court required to enlighten the jury upon the weight to be given to the testimony.

. By the code, it is further provided, that the judge shall deliver a written charge, “in which he shall distinctly set forth the law applicable to the case; but he shall not express any opinion as to the weight of evidence, nor shall he sum up the testimony.” “ It is beyond the province of a judge, sitting in criminal causes, to discuss the facts, or use any argument in his charge, calculated to rouse the sympathy, or excite the passion of a jury. It is his duty to state plainly the law of the case.” (Code Crim. Proc., Art. 594, 595.) Language can hardly be more emphatic, in separating and defining the respective provinces of the judge and of the jury. The restrictions imposed on the judge, show that it was the intention of the legislature to prevent the jury from being influenced, in any way, by the opinion of the judge, however communicated, as to what facts are proved, and as to the proper weight to be attached respectively to those facts, or any of them.

If the court should undertake to instruct, or even advise, the jury, as to the proper process of reasoning upon the facts, or as to the precautionary considerations to be borne in mind in coming to a proper conclusion upon the facts, by a dissertation, however it may be shaped, upon the nature and effect of evidence, his opinion upon the weight of the evidence may be infused into his charge upon the subject, and really influence the jury, by that mode of communicating it, as effectually, and sometimes more so, than a direct expression of it. The jury are bound to take the law from the court, and when the charge is made to embrace the rules of law and philosophic dissertations upon the nature of evidence, the jury are not always capable of distinguishing the one from the other. A charge, therefore, which extends beyond a plain statement of the law of the case, as required by the code, may invade the province of the jury, the full and independent exercise of which has been so plainly and earnestly sought to be-protected by the legislature.

The charges asked by the defendant, in this case, do not come within any of the exceptions to the rule, that the jury are the exclusive judges of the weight of evidence, and therefore the court did not err in refusing to give them.

Judgment affirmed.