The appellant was indicted for the murder of Green Butler in the county of Galveston, tried, convicted of murder in the first degree, and adjudged to be hanged, as the penalty awarded.
We are of opinion that there are several material errors in the proceedings upon the trial, for which the judgment must he reversed.
One of the highest and safest securities in the preservation of rights is a substantial adherence to the rules of law prescribed for the judicial proceedings in ascertaining and adjudging the legal consequences of their infraction. Whatever may be the facts exhibited on the trial of a criminal cause, if the rules of proceeding that have been adopted as necessary to elicit and establish the truth of the issue, are broken down and disregarded, there is no reliable certainty in the result. Hence, without considering what, in our opinion, should have been the verdict upon the facts, as presented in the record, it is necessary to see how far such verdict might have been tainted, by the infusion into its formation of errors of law, to the prejudice of the defendant.
Our Code requires that in every case of felony the judge shall, whether asked to do so or not, “deliver to the jury 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 testi“mony.” (Paschal’s Digest, Article 3059.) It further provides that new trials shall be granted in cases of felony, “ where the Court has misdirected the jury as to the law, or “ has committed any other material error calculated to injure *368“ the rights of the defendant.” (Paschal’s Digest, Article 3137.)
The charge of the court in this case develops the principles of the law of homicide, from murder in the first degree down to justifiable homicide, with all of the intermediate degrees, so that the charge itself does not indicate with any certainty what was the character of the transaction under investigation. This superfluity might be, and often is, harmless, where it appeared evident that it was not calculated to mislead, or prejudicially confuse the minds of the jury in the discharge of their duty. But where the court misdirects the jury as to the law relating to the material facts which are involved in the transaction, as shown by the evidence, then such error enters into the verdict as one of the elements of its production.
Without any critical examination of the numerous irrelevant charges, and of the injurious effects they may have been c.tlculated to produce, it will suffice to notice those erroneous charges that applied directly to the facts of the case.
And in order to appreciate their full force, it maybe proper to state, in advance, that the evidence showed without any dispute or doubt that Green Butler was shot and killed in 1ns Own yard by some person, the act being planned beforehand and deliberately performed without any known justification, excuse, dr palliation—a plain case of assassination—and the only fact in dispute as exhibited in the evidence was, whether or not Andrew J. Walker was the man who shot him. The State assumed by the charge in the indictment that he was the man. He, by his plea of not guilty, said he was not. The affirmation of the issue and the burden of the proof of that' fact was on the State.
The dying declarations of Butler identified Walker as the man, to rebut which evidence was adduced tending to show, and for the purpose of showing, that he was somewhere else and not at Butler’s at the time of the killing.
In reference to the issue thus presented by the evidence, the court instructed the jury as to the rules of law under which *369dying declarations were admissible, as specified in the Code, and added thereto, that “ if the statements made by the de- “ ceased were made in conformity with these rules of law, then “ it is competent testimony, and worthy of the same credit as “ other evidence.” In the same connection he charged them that “ an alibi is a species of defense sometimes relied upon in “ criminal cases, and when an accused relies upon it, the affirm- “ ative of the issue rests with him ; it becomes incumbent upon “ him to maintain it to the satisfaction of the jury, if he would “ enjoy its benefits. It is impossible to convict an accused if “ he was at the time in another and different place than the one “ charged in the indictment. The burden of proving that he “ was elsewhere is cast upon him. If the defendant has adduced “ evidence to the entire satisfaction of the jury, that on the night “ the murder is charged to have been committed, that he was at “ so great a distance therefrom, or the time was such as to make “it impossible for him to have committed the offense, then the “ defendant must be acquitted. This is a fact for the jury to “ decide from all the testimony elicited in the cause.”
This charge was well calculated to convey the idea to the jury that the case of the State was made out by the dying declarations “ worthy of the same credit as other evidence,” subject to being defeated alone by the defendant proving, beyond a reasonable doubt, or to a moral certainty, or “ to their “ entire satisfaction,” that it was not possible for Walker to have been at Butler’s when he was killed. It makes an alibi a defense in the nature of a plea of confession and avoidance in a civil suit; whereas it is not a defense at all in any other sense than as rebutting evidence tending to disprove the fact alleged in the indictment, that Walker killed Butler, the burden of proving which allegation rests on the State throughout the whole trial, and cannot be changed, so far as the action of the jury upon the evidence is concerned, by anything short of an admission upon the record, if such a thing would under any circumstances be a proper proceeding. For notwithstanding the failure of a plea of autrefois convict, the law does not de*370bar a trial on the plea of not guilty. The obvious error in the charge consists in furnishing the jury with an artificial rule as to the degree in the strength of their conviction (and that the highest possible degree), concerning the proof of the alibi, before it should be allowed to have any influence on their minds in disproving the fact that Walker was the person who shot and killed Butler; whereas the rule of law is that such evidence of an alibi should only be of such weight as to produce upon the minds of the jury a reasonable doubt of the fact affirmed by the State, that Walker was the man who shot Butler. Such a doubt might arise in their minds by the evidence tending to prove the alibi before they had arrived at a moral certainty as to the truth of the alibi, and if so, that would be sufficient to render the evidence available to rebut the affirmative evidence for the State, without their minds ever having arrived at a conviction, to the degree of a moral certainty, as to the truth of the alibi.
For the purpose of correcting the error of this charge, the defendant’s counsel asked the court to charge the jury, “ that “ if from the evidence adduced in this cause, there arises in “ your minds a reasonable belief that the accused was else- “ where than at the place of the homicide, at the time of its “ commission, then you should acquit him.” The refusal of the judge to give this charge shows clearly that in his opinion a reasonable belief was not a sufficient degree of conviction of the truth of the alibi, but that it must fasten upon their minds to the degree of a moral certainty, or, in his own language, it .must be established to their “ entire satisfaction.”
Although .this charge thus asked may not have furnished the exact rule upon the subject, it served the purpose of calling the court’s attention to it, and of inviting a reconsideration and reformation of the erroneous charge.
Another objection to the charge is in the inferential assumption that Walker was the person who killed Butler, to be found in several parts of the charge, and especially in the conclusion of it, which is as follows: “ If, therefore, the jury are *371“ satisfied, beyond a reasonable doubt, from all the testimony “ adduced, that the means used Z>y the defendant were likely to “ kill or do great bodily harm, and the circumstances connected “ with the homicide manifested a fixed design to kill, although “it may have existed but for a moment, and it is not otherwise “ shown that the act was the result of rash, sudden impulse or “passion, then the jury will return their verdict guilty of “ murder in the first degree, and assess the punishment to be “ either death or punishment in the penitentiary for life.”
It often happens that facts are assumed as true, in a charge, without any prejudice to the accused. For instance, in this case, had it been assumed that Butler was killed by a pistol shot, it could not have injured the defendant, for that was a fact about which there was no question or doubt, and no effort, as shown by the evidence, to controvert it. It is very different where the charge is so shaped as to take it for granted that the defendant is the person who did the act of shooting, when that is the only fact in controversy, as exhibited in the evidence. Being placed prominently in the conclusion of the principal charge, and being applied to this case directly, in connection with such facts as would be sufficient to make the killing murder in the first degree, by the defendant, none of which additional facts were in controversy at all, it was well calculated to injure the rights of the defendant.” (Paschal’s • Digest, Article 3137.) The expression, that if the jury are satisfied “ that the means used by the defendant were likely “ to kill,” etc., “ the jury will return their verdict of murder “ in the first degree,” indicated the opinion of the judge as plainly, and much more injuriously than if it had been directly. expressed, under all the circumstances of the ease.
The charge of the court, that dying declarations were “ worthy of the same credit as other evidence,” was also objectionable as a charge upon the weight of evidence. The rule of law is, that such declarations, though not under oath, are admissible evidence; but there is no rule of law that determines their weight in comparison with other evidence, as the *372judge undertook to tell the jury in this case. The judge alsox instructed the jury as to the weight and force of circumstantial evidence under particular contingencies.
It is contended, that the subsequent charges given to the jury by the judge, at the instance of defendant’s counsel, effaced the erroneous impression, and corrected the error of these charges. In three charges thus given, it was substantially expressed, though each time in different language, that if from all the evidence there was a reasonable doubt as to the presence and participation of Andrew J. Walker in the homi cide, he should be acquitted. •
This did not remove from the minds and consciences of the jury the bar and limitation imposed upon them by the artificial rule, that they must be entirely satisfied that Walker could not possibly have been at Butler’s at the time of the homicide before the evidence of the alibi should be allowed to raise a reasonable doubt in their minds. The artificial rule as to the necessary weight of evidence took away the free action of their minds in forming the doubt from the whole of the evidence. The minds of the jurors were trammeled with a condition precedent in the mental process, without which there could no doubt be allowed to arise in their minds in considering the whole of the evidence.
There is also no certainty that these additional charges were calculated to remove the impression made upon the jury by the opinion of the judge as to the weight of the evidence, dedueible from his assumption, of the fact in his charge that' Walker was the person who killed Butler. That opinion of his still helped the jury to resist the doubt from arising in their minds, if they were predisposed to resist it; or at any rate, in proportion tó its influence upon them, it tended to prevent the doubt from arising in their minds, and the support given by it may have turned the mental scales against the defendant, as to the reasonable doubt. There are artificial rules of evidence established by law which restrain the jury from the free use of the mind in forming a verdict, except on a condition pre*373cedent, 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 *374proved 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 verdict.
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 1101.)
“ 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 eveiy critn- “ inal cause, but not of the law in any case. They are bound “ to receive the law from 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 posilively 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 3059, 3060.)
The law contemplates that each branch of the court will be competent to the task iinposed-Mdie 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, iu*375struct the jury as to the relative force of the different kinds of evidence, and as to the circumstances under which one kind may he equal in weight to another, and as to the proper processes of considering evidence in order to arrive at correct conelusions, we will have presented a trial in form, but judicial anarchy, or judicial tyranny in substance, may be the result of the trial, to the prejudice of the defendant or of the State.
Another ground of error complained of by the defendant is in the action of the court in overruling the application for a change of venue, which is made to appear in a bill of exceptions, as it should be done, embracing all of the proceedings as well as the action of the court thereon. Walker and Black being indicted together, joined in the affidavit for a change of venue, “ because there exists in Galveston county, wherein this “ prosecution was cbmmenced, and is now pending, so great “ prejudice against them that they cannot obtain a fair and im- “ partial trial.”
This is supported by the affidavit of three persons, residents of said county, fully as required by the terms of the Code. (Paschal’s Digest, Article 2994.)
In opposition to this a counter-affidavit was filed signed by forty-nine persons, who swear that they are satisfied there is no such prejudice against said defendants as to prevent their obtaining a fair and impartial trial.
Those sworn, both in support of and in opposition to the change of venue, state,that they are acquainted with the pnblie sentiment upon the subject in Galveston county.
The Code provides that “ a change of venue may be granted “ on the written application of the defendant, supported by his “ own affidavit and the affidavit of at least two credible per- “ sons, residents of the county where the prosecution is insti- “ tuted, for either of the following causes, the truth and suf- “ ficiency of which the court shall determine,” etc. This court has decided that the District Court may admit counter-affidavits, when deemed necessary in determining the facts thus submitted to its judgment, in Winkfield v. The State. Reference *376is here made to the case cited, for the general views of the court upon the subject, without repeating them here. We think the discretion given to the District Judge in determining the merits of the application is a judicial and not a personal discretion, and that therefore his action may be revised by this court on appeal, when properly presented by a bill of exceptions, as is done in this case. It may be very difficult to lay down in advance any general rule by which this court would be governed in passing upon the judgment of the court below, further than that we should presume it to be right, as in other cases, unless the contrary is made to appear, with reasonable certainty, in the record. If, however, a mode has been adopted and alone relied on, in determining the credibility of the persons supporting the application, and the truth and sufficiency of the cause set out for the change of vende, is not competent to attain the object of the investigation, and will, if permitted, have the effect to defeat the object of the law itself, this court may well revise and reverse the action of the court below, founded upon such mode of proceeding.
This case falls under that rule. Supposing the three persons supporting the defendant's application to be credible, which we must, as their credibility was not attacked, the law had been complied with, which, prima faoie, gave him the right to have the venue changed. If that is allowed to be resisted and overborne by counter affidavits of a negative character, such as that in this case, made by a number of persons, the determination of his right to a change of venue would descend into a struggle between him and the District Attorney to get the greater number of persons to swear for and against the application ; and the stronger the prejudice against him the more certain would be his defeat if thus determined.
If the persons supporting the application are not credible persons, or if the prejudice as sworn to by them does not exist, it may be shown by the proof of affirmative facts, as well.as by negative evidence, as was done in the case above cited of Wink-field v. The State. (Texas Reports, 40.) In that case, it was *377shown that the persons who made the affidavit in support of the application were obscure persons, not acquainted with the public sentiment; that the case had attracted but little attention, the parties being unknown to the mass of the people in the county; that there.were a large proportion of the jurors of the county who had most probably never even heard of the transaction at all. Such affirmative facts being proved, in addition to the negative evidence, as in this case, this court sustained the action of the court below in refusing the application for a change of venue. We are of opinion that the court erred in overruling the application for a change of venue, on account of the mode which was alone adopted in determining the issue on it. The effect of"this, however, will only be to indicate a proper mode of investigation, should another similar application be hereafter made in the District Court.
Without undertaking to define the different ways in which this matter may be properly tried and determined, it is now only decided.that the mode adopted in this case is not a proper one, so as to enable this court to justify the refusal of the application, as made and supported for tlie change of venue.
We are of opinion that the court erred in overruling the aplication for a change of venue, in the charge to the jury, and in overruling the motion for a new trial, for which the judgment must be reversed and the cause remanded.
Reversed and remanded.