This case was by this court affirmed at the recent Dallas term, and is now before us on motion for rehearing. *Page 139
It is earnestly insisted by counsel for appellant that the court erred in holding that the trial court was not in error in failing to grant a motion for a new trial on the ground that the defense of alibi was not submitted in express terms to the jury, and in support of his motion we are referred to the cases of Wilcher v. State, 47 Tex.Crim. Rep.; 11 Texas Ct. Rep. 520; Allen v. State, 45 Tex.Crim. Rep.; 8 Texas Ct. Rep. 322; and Bird v. State, 48 Tex.Crim. Rep.; 13 Texas Ct. Rep. 295. In the original opinion of this court in affirming the case, it was stated, "It is well settled in this State by repeated decisions of this court that the defense of alibi is sufficiently embraced in a general charge to the effect that a defendant is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt where no additional instruction is requested more explicitly amplifying the law upon that subject." In this case, as stated in the original opinion, not only did the court below charge the jury the doctrine of reasonable doubt but gave also the following charge: "If defendant did not break the house of the said Jacob Preager and set fire thereto he would not be guilty of the offense charged, and if you so find or if you have a reasonable doubt thereof find him not guilty." In the case of Oxford v. State, 32 Tex.Crim. Rep. this court, speaking through Judge Simkins, said: "The court did not err in failing to charge on alibi. It was not an issue in the case, and no charge was requested on such a defense, nor was there an exception to the failure to charge thereon. It is settled in this court, that such a defense is sufficiently embraced in the general charge that a defendant is presumed by law to be innocent until his guilt is established by competent evidence, beyond a reasonable doubt, and if such a charge is desired, it must be requested." In the case of Quintana v. State, 29 Texas Crim. App. 401, Judge Davidson of this court, says: "But the omission of the trial court to charge with reference to alibi is not such error as will, ordinarily, cause a reversal of the conviction, unless the charge be excepted to because of such omission, or unless special instruction upon that subject be requested and refused." In the case of Ayres v. State, 21 Texas Crim. App. 399, the court say: "Unless requested to do so, the trial judge is not required to charge specially upon the defense of alibi. It is ordinarily a defense sufficiently embraced in the general charge that a defendant is by law presumed innocent until his guilt is established by competent evidence beyond a reasonable doubt. In The State v. Reed, 62 Iowa 40, it is held that alibi is not a defense within the accurate meaning of that word, but a mere fact shown in rebuttal of the State's evidence, and it does not, therefore, demand a specific instruction from the court." In the case of Davis v. State, 14 Texas Crim. App. 645, Judge Willson, speaking for the court, says: "Another objection made to the charge is, that it fails to instruct the jury as to the rules of law applicable to the defense of alibi. We are not aware of any statute or decision which requires the trial judge to instruct the jury specifically upon this defense when not requested to do so. It is sufficiently embraced, we think, in the general *Page 140 charge, that the defendant is presumed by law to be innocent until his guilt is established by competent evidence beyond a reasonable doubt." Again, in the case of Rider v. State, 26 Texas Crim. App. 324, it is stated: "If an alibi had been the only defense, then, perhaps, the court should have charged specifically with reference to it. Where it is not the sole defense, it is not necessary that the court should charge specially upon it, unless requested to do so, and the omission in the charge upon the subject in such a case will not be error, unless the charge is specifically excepted to upon that ground." It will be observed that the cases cited above uniformly lay down the rule that it is not reversible error for the trial court to fail to specifically submit the issue of alibi in the absence of a requested instruction so to do, or in the absence of an exception made at the time of the court's failure so to do. In this case, not only did the court give an instruction upon the subject of reasonable doubt, but, as stated above, in express terms, told the jury that if appellant did not break the house and set fire to it, or if they had a reasonable doubt that he did not so do, they would find him not guilty.
Appellant however insists that since the enactment of article 723, of the Code of Criminal Procedure, the rule laid down herein is no longer the law of this State. Article 723, approved March 12, 1897, is as follows: "Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on motion for a new trial." The article as it theretofore stood was as follows: "Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall be reversed; provided, the error is excepted to at the time of the trial." The cases cited in the original opinion were delivered before the adoption of article 723 as it now stands. That article was in the nature of remedial legislation, and its purpose was to prevent a reversal of criminal cases for mere matters of form where there had been no invasion of any substantial right of a defendant, and to require, in matters of procedure, that counsel for defendants should give the court below an opportunity to correct any error into which by inadvertence or otherwise they had fallen. It certainly was never intended that article 723, of the Code of Criminal Procedure, would institute a more rigorous or technical rule than had existed aforetime, and we cannot see any reason why, in respect to the matter complained of, a case should be reversed that would not have been the subject of reversal under the law as it stood before the adoption of the article in question. It must be confessed that in tendency, if not in effect, the decisions cited by appellant antagonize and are out of harmony with the decisions herein rendered, and with the earlier decisions of this court. In the case of Allen v. State, 45 Tex.Crim. Rep.; 8 Texas Ct. Rep. 322, the case was *Page 141 reversed because the court failed to charge on alibi. In that case it appears that counsel for appellant claimed that they excepted to the failure of the court to so charge at the time, and in his motion for a new trial refers to bill of exceptions taken at the time. The opinion discloses the fact that there was an affidavit filed in the case by counsel for appellant to the effect, in substance, that he presented to the court his bills of exception numbers 1 and 2, which raised the question of the failure of the court to charge on alibi, to the judge during the term; that the judge, without the consent of appellant, took said bills of exception and kept them until after court adjourned, and then carried them with him to Knox County, and sometime thereafter returned them to the clerk, and they were filed by him on July 21st. However, it appears that the court certified that he refused said bills because exception was not made and the attention of the court was not called to the objection until after the jury returned their verdict. In this state of the case, Judge Henderson says: "The question presented is, does this procedure sufficiently raise the question as to the failure of the judge to give a charge on alibi? We hold that it does. Unquestionably when appellant filed his motion for new trial he referred to his two bills of exception numbers 1 and 2, which set up the error of the court in failing to charge on alibi. These bills were in the hands of the judge at the time, and appellant evidently believed, and had a right to believe, that they would be filed during the term in some shape, either with corrections or explanations by the judge. The statement of the judge that he refused them, giving his reasons that appellant did not call his attention to the failure of the court to charge on alibi, until after the jury had returned their verdict, was really tantamount to an explanation by the judge that, in his opinion, the exceptions came too late. If it be conceded that the exceptions did come too late, still the motion for new trial was presented in time and referred to said bills, which called the court's attention to the failure of the court to charge the law, but which, in the opinion of the court, came too late for that purpose. We hold that we can look to the refused bills in order to determine the character of appellant's objections to the court's charge, as presented in his motion for new trial. It is accordingly the opinion of the court that the exception in the motion for new trial to the court's charge, thus explained, sufficiently raises the question of failure on the part of the court to charge on the question of alibi; and for this failure the judgment is reversed and the cause remanded." It is, therefore, we think, obvious that in effect these exceptions, though refused, were treated for all practical purposes as having called the attention of the court to his failure to charge on the subject of alibi. In the case of Wilcher v. State, 47 Tex. Crim. 301; 11 Texas Ct. Rep. 520, it was held by this court that a failure to charge upon the issue of alibi when raised by the testimony is error and ground of reversal under article 723, and it is stated: "Before the enactment of article 723, Code of Criminal Procedure, it was held that it was necessary to request a charge or except to the court's failure to *Page 142 charge on alibi by bill of exceptions," and reference is made to the case of Quintana v. State, 29 Texas Crim. App. 401. Again, in the case of Bird v. State, 48 Tex.Crim. Rep.; 13 Texas Ct. Rep. 295, it is said that the court's charge upon another trial should give the law with reference to alibi fully. That the cases last cited, and possibly others, do conflict with the earlier rule referred to in the original opinion, is obvious by comparison, and will be readily seen from the statement we have made. Neither of these cases cited above, however, except the Wilcher case, refer to any of the older decisions of the court, nor do they in terms overrule them. We believe, as stated, in the original opinion, that the true and correct doctrine is that where the defense of alibi arises in a case and the court submits the issue of defendant's guilt and charges the doctrine of reasonable doubt, that this includes of necessity a finding by the jury on the issue as to whether the defendant was present and in fact committed the crime charged, and that a case ought not to be reversed for the failure of the court to particularly charge on alibi, unless the action of the court was excepted to at the time, and a full and more particular submission of the issue of alibi sought. This was the rule in Texas time out of mind, and so laid down repeatedly in an unbroken line of decisions until the case of Allen v. State, 45 Tex.Crim. Rep.; 8 Texas Ct. Rep. 322. The only reason given in any of the cases why a different rule should be instituted is based upon construction and consideration of article 723, of the Code of Criminal Procedure. As stated, that was a remedial statute designed to prevent reversals for mere technical errors, and to hold, as seems to have been done in the cases last cited, that a reversal must follow for the failure of the court to charge on alibi, solely because the issue was raised on motion for a new trial is, in effect, to nullify the statute and make our last statute worse than the first. This we do not believe was the intention of the Legislature, nor do we believe that this construction is correct. So believing, we hereby in express terms overrule the cases of Allen v. State, 45 Tex.Crim. Rep.; 8 Texas Ct. Rep. 322; Wilcher v. State, 47 Tex.Crim. Rep.; 11 Texas Ct. Rep. 520; and Bird v. State, 48 Tex.Crim. Rep.; 13 Texas Ct. Rep. 295, cited above, and reaffirm and redeclare the old rule which so long existed in this State that a case will not be reversed for the mere failure of the court to charge on the subject of alibi, unless a special charge submitting this issue is requested or an exception reserved at the time. We are the more constrained to do so in this case for the reason that the charge of the court herein in effect submitted the doctrine and issue of alibi, and that same was reasonably included in the charge herein copied. In any event the failure of the court to charge on the law of alibi was not calculated to injure the appellant.
The motion for rehearing is, therefore, overruled.
Overruled. *Page 143