Gallaher v. State

Willson Judge.

Numerous objections are urged by counsel for the defendant to the charge of the court, each of which we have carefully considered, and will briefly refer to and determine.

1. “Malice” in the charge is defined to be “the intentional doing of a wrongful act to another without legal justification or excuse.” This definition of the term is precisely the same as that given in McKinney’s case and approved by this court. 8 Texas Ct. App., 626; see also Harris, v. The State, Id., 90, as to definition of “'malice”; Lander v. The State,. 12 Texas, 481.

2. It was not error to instruct the jury that if the defendant “killed" the deceased by shooting her with a pistol, or by cutting her with a-knife,” etc. It was charged in the indictment that he used both means-in killing her, and it was sufficient to prove that he used either. Hoiwas it necessary to prove or charge, in view of the other evidence in the case, that the weapon used was a deadly one.

3. Upon the presumption of innocence and reasonable doubt the-the charge is full and correct, and not subject to the objections made to it.

4. Hor is the charge on circumstantial evidence objectionable, but on the contrary it is substantially the form of such a charge which has repeatedly been approved in this and other States. It has not been usual to add to a charge upon circumstantial evidence the last sentence contained in the one before us, but we can perceive no error in such addition, as it certainly announces a correct principle of law applicable to the case.

5. A majority of the court hold that the charge on alibi is sufficient. It is almost a literal, and is a substantial, copy of the one approved by this court in Walker v. The State, 6 Texas Court of Appeals, 576. It has; been approved by this court in numerous subsequent unreported eases. We are unable to appreciate the objections made to this charge. We can not see that it is upon the weight of the evidence, or that it sums up the evidence or any portion of it. It does not obtrude upon the jury the-opinion of the judge as to the facts upon the issue. It refers to the term alibi as a defense.

It is argued that alibi is not a defense. This objection is to our mind without merit, and but for the dissent of our brother, Judge Hurt, and the earnest insistance of counsel for defendant, we would not regard it as requiring serious consideration. In common parlance the term alibi is understood to mean a defense made in a criminal prosecution. It is denominated a defense in Webster’s Dictionary. It is also denominated and treated as a defense by courts of the highest authority, and by standard authors. Mr. Wharton defines it as follows: “It is a defense resorted to in criminal prosecutions where the party accused, in order to prove that he could not have committed the crime with which he is charged, offers evidence that he was in a different place at the time the offense was being committed.” Whart. Law Dic., “Alibi.”

Mr. Saclrett, in his Instructions to Juries, p. 499, gives two approved forms of a charge upon alibi, in both of which it is denominated defense. In the American and English Encyclopsedia of Law we find the following: “A prisoner or accused person is said to set up an alibi when he alleges that at the time when the offense with which he is charged was committed he was elsewhere, that is, in a different place from that in which it was committed. If proved, it is of course a complete answer to the charge. An alibi is as much a traverse of the crime charged as any other defense.” Vol. 1, pp. 454, 455. Numerous decisions are cited in the notes to the text above quoted, in many of which alibi is referred to and denominated a defense. We think alibi is a defense; as much so as insanity, or any other exculpatory matter. But it is further insisted that the charge in question erroneously casts upon the defendant the burden of proving an alibi, and that such a charge was condemned by our Supreme Court in Walker v. The State, 42 Texas, 360. An examination, of the charge under discussion in the Walker case will show that it and the charge given in this case are essentially and widely different, and we do not regard the decision in that case as an authority adverse to the views which we here announce. Our understanding of the rule is, that when the evidence for the State has established beyond a reasonable doubt that, defendant was present and participated in the commission of an offense, and is guilty as charged, he may rebut the case made by the State by proof of an alibi, but unless he makes such proof, or proves some other matter which will exculpate him, or raise in the minds of the jury a reasonable doubt of his guilt, his conviction must follow. It is not required, in order to entitle a defendant to an acquittal upon the defense of alibi, that, such defense should be established beyond a reasonable doubt. The rule is, that if the evidence adduced in the case, whether in behalf of the State or of the defendant, engenders in the minds of the jury a reasonable doubt as to defendant’s presence at the time and place of the commission of the offense, the defendant is entitled to an acquittal. We do not understand the charge under consideration as shifting the burden of proof from the State to the defendant. It does not instruct that the burden of proving an alibi is upon the defendant, or in any way intimate that he must make such proof. It simply and clearly states the rules of the law as to the effect of such proof. This view does not conflict with the decisions of this court in Humphries v. The State, 18 Texas Court of Appeals, 302, and Ayres v. The State, 21 Texas Court of Appeals, 399, as will be seen by a careful analysis of those cases. We can not conceive that the charge in question could in any way have misled the jury to the prejudice of the defendant. We think it a correct charge, and sanctioned as such by reason, and by numerous authorities.

6. A majority of the court are of the opinion that it was not error to admit, the testimony of the witness Barbee relating to the statements made to him by the witness Judy James. Defendant sought to cast discredit upon the witness Judy James by showing on her cross-examination that her testimony against the defendant was the result of fear, and influenced by a desire to shield herself and husband from being accused of the murder. Defendant himself, through his counsel, in his cross-examination of the witness Judy James with a view to impeaching her testimony, called forth, if not directly, yet legitimately, the statements objected to. The statements objected to were a part of a conversation brought out by the defendant, and the State was entitled to have the whole of said conversation. These statements were admissible under the express provision of our statute which expands the common law rule with reference to such evidence. Code Crim. Proc., art. 751; Willson’s Grim. Stats., sec. 2481. It was doubtless under said provision of the statute that the trial judge admitted said testimony as part of the conversation between the two witnesses Barbee and Judy James drawn out by the defendant’s counsel, and it being in our opinion clearly admissible under said provision, it is unnecessary that we should determine whether or not it was admissible for the purpose of corroborating the witness Judy James. We are inclined to the opinion, however, that it was admissible for that purpose also.

7. A majority of the court hold that it was not error to reject the testimony of the defendant’s witness Peareson as to the litigation between defendant and the deceased. Said witness was permitted to and did testify about such facts relative to such litigation as were relevant to the issue and otherwise competent. But the other matters sought to be elicited from said witness were not admissible under any rule of evidence with which we are familiar. They were declarations made by defendant to his counsel, and advice given to him by his counsel. Such testimony must be regarded as in the nature of self-serving and incompetent in behalf of the defendant.

8. There are numerous other assignments of error which we do not discuss because we deem them unimportant and without substantial merit. We have found no error in the conviction. We think the evidence supports it. It was the province of the jury to weigh the evidence and pass upon the credibility of the witnesses, and accepting as true the evidence adduced by the State, there can be no question of the defendant’s guilt of a most atrocious murder.

The judgment is affirmed.

Affirmed.