The appellant, Jeff Black,,
Andrew J. Walker, and Amos Walker were indicted in the criminal district court of Galveston county, at its May term, 1872, for the murder of Green Butler. The indictment in substance charges that Andrew J. Walker did the killing,. and that Jeff Black and Amos Walker, being present and knowing the intent of the said Andrew J. Walker, did then. *380■and there aid by acts, and encourage by words, the said Andrew J. Walker in the commission of the murder.
Amos Walker, one of the defendants, has never been ■arrested. Jeff Black was twice convicted by the criminal ■court of Galveston, which convictions were reversed by the •supreme court for errors committed by the lower court in its charge to the jury and in proceedings on the trial. By reason of the presiding judge having been of counsel, the "venue was changed to Chambers county. At the August term, 1875, of the district court of Chambers county, on the application of Andrew J. Walker, a severance was had, when Jeff Black was put on trial, and was convicted by the jury of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. He took an appeal to the supreme court. The case was transferred from the supreme court to the court of appeals after "the organization of this court.
The appellant, by his counsel, has made the following rassignment of errors:
“ 1st. The court erred in permitting D. D. Waters to Testify as to the subject of Mrs. Annie Butler’s statements ■as a witness, on a former trial of this cause, as set forth in his bill of exceptions No. 1.
“ 2d. The court erred in its charge to the jury in each ■-several paragraph thereof.
“3d. The court erred in refusing the several charges •asked to be given by the defendant, as set forth in bill of exceptions No. 2.
“ 4th. The court erred in refusing to grant the defend.ant’s motion for a new trial, and in overruling the same.”
Mrs. Annie Butler was duly sworn (as appears from the testimony), and testified as a witness for the state at a former trial of this cause. The 1st error claimed -by the ■defendant to have occurred was the admission of the testi*381mony of D. D. Waters to show what Mrs. Annie Butler-had sworn on a former trial of the same cause, she having-died since then. There is no question but that Waters fully qualified himself as to his ability to speak of said testimony. After being duly sworn, he stated that he was acquainted with Mrs. Annie Butler, the wife of Green Butler; that she had died since the last trial of this cause; that she was sworn and examined as a witness for the state on a former trial of said cause; that he was present, heard her testimony on that occasion, and could repeat it, distinguishing between what she said on the direct and what she said on the cross-examination. Said Waters was then asked by the district attorney for the state to tell the court and jury what the said Annie Butler did say and testify to as witness at the former trial hereof, to which the defendant objected for the following reasons : “ That the said Waters was not a. competent witness for that purpose, and that the testimony was not admissible under the law.” The court overruled the objections, and permitted the said Waters to testify as to the subject of Mrs. Annie Butler’s statements at a former trial; to which ruling the defendant, by his counsel, excepted,, and took a bill of exceptions.
It is insisted by the counsel for the appellant that the-admission of such testimony was not authorized by law, was in violation of the provisions of Magna Oharta, and against the Bill of Bights as found in the 1st Article, 8th-section, of the Constitution of the state of Texas, wherein it is provided that in all criminal prosecutions the accused shall be confronted with the witnesses against him. We have been referred by the attorneys for appellant to a. number of cases to support their position.
The authorities generally agree that in civil cases the testimony of a deceased witness, given in open court after being duly sworn, may be proved by a person who heard *382his testimony in a former trial of the same cause, between the same parties, and who states on oath that he can give the testimony of said deceased witness; but quite a number of authorities can be found which deny the application of this rule to criminal cases. We think, however, at this time it has generally been declared to be the correct rule of law, both in England and in most of the American states, that the testimony of a deceased witness at a former trial of a criminal charge is admissible at a second trial of the same cause, and may be proved by another person who heard that testimony, and who can qualify himself to give it; that in this respect there is no difference between civil and criminal cases, and that the admission of such testimony is not against the provisions of Magna Oharta, nor against the provision of the Bill of Rights of the 1st Article, 8th section, of the Constitution of the state of Texas, wherein it is provided that in all criminal prosecutions the accused shall be confronted with the witnesses against him. The current cf authorities sustains the ruling in the court below in permitting Waters to give the testimony of the deceased witness at a former trial of this cause.
“ Proof of what a deceased witness testifies to on a preliminary examination before a justice of the peace, touching the same charge for which the accused stands indicted, is admissible against him, although the examination was not reduced to writing.” Davis v. The State, 17 Ala. 354; State v. Hooker, 17 Vt. 658.
Evidence of the testimony of a deceased witness at a former trial of a criminal charge is admissible at a second trial for the same offense. Summers v. The State, 5 Ohio St. 325; 10 Humph. (Tenn.) 479 ; Pope v. The State, 22 Ark. 371.
What a witness, since deceased, swore to on a former trial was taken down in a brief of testimony, and a witness *383testifies that the brief contained the evidence of the deceased. Held, that the brief might be read in evidence. Riggins v. Brown, 12 Ga. 271.
Whilst it has been pretty generally conceded that the •decided preponderance of decisions now favors the admissibility of such testimony, we find many of the earlier decisions held to the doctrine that the precise words of the ■deceased witness must be proved. But .the rule in that respect has been greatly relaxed in modern times, and now the substance of all that was' said by the deceased when he testified is sufficient. Trammell v. Hemphill, 27 Ga. 525 ; United States v. Macomb, 5 McLean, 286 ; Horne v. Williams, 23 Ind. 37; 18 Pick. (Mass.) 434; 45 Cal. 145; 1 Greenl. on Ev. 165; Russell on Cr. 683, and note; Starkie on Ev. 280, note n.
The supreme court of this state, in the case of Greenwood v. The State, 35 Texas, 587, have followed the rule -of evidence recognized by standard text-writers, and by courts of last resort in nearly all of the states in the Ameri■can Union.
The testimony of Mrs. Butler, as appears from the transcript, was given in under all the solemnities of an oath, at ■a trial of this cause, when the accused was present and •cross-examined her. All the leading cases of a similar character hold that the admission of such testimony violates no •constitutional right of the defendant, the principle decided being that the language used from the time of Magna Charta, in the federal and all the state Constitutions, whereby was •secured to the accused the right of being confronted with the witnesses against him at his trial, was not intended to •alter the well-established rule of evidence by which the best evidence could be availed of in all cases. At a former day of the present term, in the case of Johnson v. The State, this court decided that the written testimony of a deceased witness in a criminal case, taken before an examining court, *384touching the same charge for which the accused stands indicted, was admissible evidence when he was on trial for the offense charged in said indictment, and was not in violation of Article 6605, Paschal’s Digest, nor of the 1st Article, 8th section, of the Constitution of Texas of 1869.
The counsel for the appellant insist that the district court committed a grave error in permitting the witness Waters, to testify as to the evidence of Mrs. Butler (then dead), given on a former trial of this cause, relative to the dying declarations of her husband.
The constitutional right of the accused to confront the witnesses against him, face to face, is not impaired by the rule of law allowing the dying declarations of the deceased, made in extremis, to be given in evidence upon a trial for his homicide. The Constitution does not alter the common-law rule of evidence, but leaves it to the law to determine what a witness, when confronted, shall be allowed to state1 as evidence. Walston v. The Commonwealth, 16 B. Mon. (Ky.) 15; Campbell v. The State, 11 Ga. 353; Commonwealth v. Carey, 12 Cush. (Mass.) 246; People v. Glem, 10 Cal.; Burrell v. The State, 18 Texas, 713 ; Benavides v. The State, 31 Texas, 131.
Article 3125, Paschal’s Digest, in providing for the admission of dying declarations, lays down no new rule. It is merely affirming the common-law rule of evidence. By an examination of the objections taken by the counsel for the defendant in the lower court, it will be seen that no special objection was taken to Waters giving Mrs. Butler’s testimony because it purported to give the dying declarations of her husband. Objections to the admission of dying-declarations must be made on the trial; it is too late to object for the first time in this court. Lambert v. The State, Morr. (Miss.) St. Cas. 509. Mrs. Butler testified to other facts, which were material, besides the dying declarations of her husband. And, so far as the record shows,. *385Mrs. Butler’s testimony was given in by her under oath, at a former trial of this cause, without objection. If Mrs. Butler was a competent witness at the time she testified, and qualified herself to give to the jury the declarations of her husband, Green Butler, in extremis, at a former trial of the appellant in this cause, and it is proved that Mrs. Butler is dead, we have been unable to find any decision or rule of evidence which would exclude a witness who heard her testify, and could give the substance of her testimony, from giving it in a subsequent trial of the same cause. The doctrine has been too long and too well settled in this state, that the dying declarations of the deceased, in a case of homicide, may be proved by a witness who heard the same, to be now questioned. It often happens that there is no third person present to be an eye-witness of the fact, or to identify the murderer, the usual witness in other felonies— viz., the party himself—having been gotten rid of. Dying declarations are .admitted as evidence only in cases of homicide. Two considerations unite in their admission—the necessity of the case and the situation of the declarant. The danger of impending death is an equivalent to the sanction of an oath. When a party is at a point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth, the law considers that a situation so solemn and awful creates an obligation equal to that imposed by an oath administered in court.
Article 3125 of our Code of Criminal Procedure (Pasc. Dig.), which provides for the admission of dying declarations, lays down no new rule. It is merely affirming the common law.
The testimony delivered by Waters, speaking for Mrs. Annie Butler, should have been admitted as a part of the res gestae of this mysterious homicide.
We deem it unnecessary to notice at this time the 2d *386assignment of errors, viz., that the court erred in its charge to the jury.
After the court had submitted its charge to the jury the counsel for the defendant asked the court to give the following special charges:
6 61st. The accus'ed must be presumed to be innocent until his guilt is established by legal evidence, and in case of a reasonable doubt as to his guilt he is entitled to be acquitted.
“2d. The indictment in this case charges that he, Jeff Black, was present, aiding and assisting, encouraging by his acts and words, in the killing of Green Butler.
“ 3d. In this case the burden of proof to show the truth of the charge is at all times on the state.
“4th. If, then, the jury believe from the evidence that there is a reasonable doubt, arising out of the evidence, as to the presence of the accused, Jeff Black, at the time of the commission of the murder, then you should acquit him.”
The court refused to give the above special charges asked; to which the defendant excepted, and took a bill of exceptions.
It is admitted by the counsel on the part of the state that the court did not charge that the accused was presumed to be innocent until the contrary was shown by legal evidence, but it is insisted by them that the charge, as given, involves the enunciation of that principle as effectually as if the exact language had been given ; and, further, that it was a matter for the court to determine, whether or not such a charge was necessary; and in support of this last position we have been referred to the case of Pilkinton v. The State, 19 Texas, 217.
We will copy the portions of the charge which was given, upon which the assistant attorney general and the other counsel for the state rely to show that the giving of the *387charges, as asked by the’ defendant’s counsel, would have been but to repeat the law as applicable to the case which had already been given in the main charge. They are as follows:
“ 3d. If the jury are not satisfied from the evidence that Green Butler was shot and killed by Andrew J. Walker, and that the defendant, Jeff Black, was present at the time of the killing, aiding the said Walker by his acts or encouraging him by his words, they will find him not guilty.
“ 4th. If the jury entertain a reasonable and well-founded •doubt of the guilt of the defendant, arising out of the evidence of the case, they will find him not guilty.”
There were two important facts to be determined by the jury: 1st. Did Andrew J. Walker murder Green Butler, as ■charged in the indictment? 2d. If Andrew J. Walker did murder Green Butler, as charged in the indictment, was ■Jeff Black then present with the said Walker, and, knowing the intent of the said Walker, did he, the said Black, then and there aid by acts, or encourage by words, him, the said Walker, in the murder of the said Butler?
The case is one of circumstantial evidence as against the ¡appellant, Black. The evidence in the transcript shows beyond dispute that Green Butler was assassinated in his own yard, a little after dark on Sunday night, the 19th of May, 1872. The circumstances connected with the killing, we think, show that the act was planned beforehand, and was ■deliberately executed, and was without excuse, justification, ■or palliation. The evidence in the record is substantially the same as that testified to on the former trial of this case. Black v. The State, 42 Texas, 377. Green Butler, in his •dying declaration, said that Andrew Walker killed him; that he did not know the other man who was with Walker when he was shot. None of the other witnesses examined recognized the man who shot Butler, or the person who was with him. And the description of the man who was with the *388person who killed Butler, as given by the witnesses, did not correspond with the appearance of Black. It is attempted to be shown that Andrew J„ Walker is the person who shot and murdered Butler, and that another person was present, acting his part with Walker in said murder; that Black was with Walker a short time before and after the murder, and that, therefore, Black was the person who was with Walker, aiding and encouraging him in the murder.
It is insisted on the part of the appellant that the time Butler was killed, and the time and distance from Butler’s house, at which Black was seen before and after the killing, and the description of the person given by the witnesses, show that he, Black, was not at Butler’s house when Butler was killed. The record disclosesno motive that Andrew Walker, Amos Walker, or Jeff Black had to take the life of Green Butler. Andrew Walker and Green Butler had been raised together as boys, and had been personal friends; that Black and Butler were acquainted. The wife of Butler testified that she had never heard of any difficulty between her husband and any of the defendants or anybody else. No effort was made on the trial to show that the killing of • O Butler resulted, or could have resulted, in any advantage to the accused. The absence of all inducing cause on the part of Black to kill Butler was relied on by the attorneys for Black as strengthening the presumption of his innocence'. We believe that the court below should have given the charges asked by the counsel for the defendant. '
Article 3105 of our Criminal Code (Pasc. Dig.) is as follows : “A defendant in a criminal cause is presumed to be innocent until his guilt is established by legal evidence, and in case of reasonable doubt as to his guilt hé is entitled to1 be acquitted.” It will be seen by reference to the 1st special instruction asked by the counsel for defendant, in the court below, that it is in the exact language of said Article 3105. It was the law, and, be it much or little, the defend*389ant was entitled to all of it, and it should have been given; and especially in a case like the one at bar, when the life of a fellow-being was at stake, and when all the evidence against him was circumstantial.
We have found two decisions exactly in point. The supreme court of Indiana, Osborn, J., delivering the opinion of the court, say: “At the proper time the appellant asked the court to instruct the jury as follows: ‘ The defendant is presumed to be innocent until the contrary is shown, and when there is a reasonable doubt whether his guilt is satisfactorily shown he must be acquitted, ’ which was refused on the ground that the same had been substantially given in the instructions of the court.” The court say: “We have carefully examined all the instructions, and find that the second branch of that asked and refused had been substantially given, but they were silent on the presumption of innocence. The court should have charged the jury on that subject, as asked, and an error was committed by its refusal to do so.” Long v. The State, 46 Ind. 589.
Again, in 1875, the same question came before the supreme court of Indiana in the case of Line v. The State, 51 Ind. 175, in which Biddle, C. J., delivered the opinion, and the judgment of the lower court was reversed because the court below refused to instruct the jury “that the defendant is presumed to be innocent of the crime with which he is charged, and before he can be convicted the state must prove his guilt beyond areasonable doubt.”
We have examined the statute of the state of Indiana to see if there was any provision similar to Article 3105 in our Criminal Code. Article 10, chapter 1, of the Code of Criminal Procedure of Indiana is as follows: “A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is satisfactorily *390shown he must be acquitted. When there is a reasonable doubt in which of two or more degrees of an offense he is-guilty, he may be convicted of the lower degree only.” It will be seen that there is no material difference between the law of Texas and Indiana on the point at issue.
The supreme court of Alabama, in the case of Mower v. The State, 44 Ala. 15, reversed the judgment because the lower court refused to give the following special instruction asked by the counsel for the defendant: “ That innocence should be presumed until the case proved against the prisoner, in all the material circumstances, is beyond any reasonable doubt; and that the evidence ought to be strong and cogent to find the defendant guilty as charged.”
In the case of Pilkinton v. The State, 19 Texas, 214, to* which we have been referred by the assistant attorney general, the defendant, Pilkinton, by attorney, asked the court to instruct the jury “ that if they have a reasonable doubt, arising from the testimony, of the guilt of the defendant they should acquit.” This charge was refused. The supreme court say: “In general, and especially when the evidence is of doubtful interpretation, or is not of so conclusive a nature and tendency as to exclude any reasonable doubt, it would certainly be proper to instruct the jury respecting their duty if they have reasonable doubts, arising out of the evidence, as the court was asked to instruct them in this case. But if they believed the witnesses, it is not easy to perceive any room for doubt respecting the guilt of the accused. The court doubtless thought the evidence did not call for the giving of the instruction, and, if the witnesses were entitled to credit, we cannot say the court was in error.” The supreme court of the state of Texas, Roberts, C. J., delivering the opinion, in the case of Carr v. The State, 41 Texas, 545, and also in the case of Thomas v. The State, 40 Texas, 45, opinion by *391Gray, J., hold that the presiding judge, in all cases of felony, should give such charge as was asked by the counsel for the defendant in the case of Pilkinton v. The State.
The court committed an error in the case now before us in refusing to give the 3d special charge asked by the appellant. It is the law that in this case the burden of proof to show the truth of the charge is at all times on the state. This is an elementary principle so well established and so fully laid down and discussed in the text-books, and so vital to the rights of the accused, he was entitled to it.
We also believe that the court should have given the 4th special instruction asked—that if the jury believed from the evidence that there was a reasonable doubt, arising out of the evidence, as to the presence of the accused, Jeff Black, at the time and place of the commission of the murder, then they should acquit him. And under the evidence in this case it was of vital importance to bring the matter prominently before the jury that, before they could find the defendant guilty, they must not only believe beyond a reasonable doubt that Walker murdered Butler, as charged in the indictment, but they must go a step further, and be satisfied from the evidence, beyond a reasonable doubt, as to the presence of the accused, Jeff Black, at the time and place of the murder, and that, knowing the intent of the said Walker, he, the said Black, did aid by acts, or encourage by words, him, the said Walker, in the murder of Butler.
It is not sufficient, in a case of circumstantial evidence, that the circumstances proved coincide with, account for, and therefore render probable, the hypothesis sought to be established by the prosecution; but they must exclude, to a moral certainty, every other hypothesis but the single one of guilt, or the jury must find the defendant not guilty. And each fact in a chain of facts from which the main fact in issue is to be inferred must be proved by competent *392evidence, and by the same weight and force of evidence as if each one were the main fact in issue; and all the facts proved must be consistent with each other, and with the main fact sought to be proved.
As this case will have to be tried again, we will not express an opinion as to the sufficiency of the evidence to support the verdict of the jury.
The judgment of the district court is reversed and the cause remanded.
Reversed and remanded.