John Dubose was charged with the murder of James Benton; was tried and convicted of murder of the first degree, and his punishment assessed at confinement in the penitentiary for life. There are a number of points raised by the assignment of errors; but we think that the determination of three will be all that is necessary to a proper disposition of the case.
1st. Under the surroundings of this case, had the defendant the right to show motive, threats and opportunity on the part of the State’s witness Bacquet to kill the deceased ?
2d. Was the defendant, under the circumstances in this case, entitled to prove facts and circumstances tending to fasten guilt upon some other person ?
3d. Did the court err in charging the jury, that “In every criminal prosecution the accused is presumed innocent until his guilt is established by legal evidence, and the burthen of proof must rest upon the State, and does not shift till the State has proved, to the satisfaction of the jury, the facts which constitute the offense charged, and when this is done it then devolves upon the accused to establish that upon which he relies to excuse or justify the prohibited act ? ”
First proposition. One Bacquet was a very important, in fact, the main witness for the State. Besides his evidence there is no fact tending to produce anything more than a bare suspicion against the defendant. The record *247contains some evidence inculpating this witness. The defendant offered other evidence upon the trial, tending to connect this witness with the murder. This evidence consisted of motive, threats and opportunity to kill the deceased Benton. To the introduction of these facts the State objected, and the court below sustained the objection; to which ruling the defendant excepted and reserved his bill of exceptions.
If the witness Bacquet were an accomplice, the defendant could not be legally convicted upon his evidence, unless corroborated in a certain manner; and if this corroboration failed, no conviction could be had on the evidence of this accomplice. The defendant’s guilt may have depended entirely upon this fact; hence the proof of this fact, to wit, that Bacquet was an accomplice, is a full and complete defense to the prosecution. Again, if there was no corroboration as the law requires, a doubt as to whether he was not an accomplice would have been a good defense; for a doubt of a fact upon which guilt necessarily depends is a doubt of guilt.
The defendant having clearly the right to show that the witness Bacquet was an accomplice, by what character of evidence must he prove it? Is he confined to positive evidence, or may he enter the field of circumstances? He would have the right to attack, with every character and description of legal evidence, any other fact upon which his guilt depends. Why restrict in this case? If successful, is not the defense made legal by the law of the land? There being none against, but, in our opinion, every reason in favor of, a full and complete range of investigation, we are of the opinion that, to establish that the witness was an accomplice, the defendant had the right to introduce every character of evidence, whether positive or otherwise, which would have been admissible if the witness had been on trial for the murder. This will be again referred to and more fully noticed below.
*248The second proposition: “Was the defendant entitled, under the peculiar character of this case, to introduce evidence tending to prove that some other person killed the deceased? ” This is a case of circumstantial evidence, except the'confessions sworn to by Bacquet. The authorities are divided upon this subject, and we think the weight is against the admissibility of the evidence. Later decisions, however, are leaning in its favor. The question with the writer is,—“Upon which side is reason and justice? for, it being impossible to reconcile the authorities, we must look to the reason and analogies of the law for a proper solution of the subject. As prehminary to the main point, we will here state that, in a case in which the killing by defendant is not the vital issue, it being conceded, this evidence would be inadmissible. But the issue being, did the defendant kill the deceased, under this issue is this proof competent? We think, by a plain and simple illustration, its admissibility can be demonstrated.
Suppose that A is indicted for the murder of B. Upon the trial the State proves by two witnesses that they were present at the homicide, and saw A kill B. B denies the killing, and proposes to prove by a witness who was also present that 0 killed the deceased. Would any court hold that this evidence was not admissible? Certainly not. JSTow suppose the State were to propose to prove that A had a motive for, and threatened to kill B. This would be clearly admissible, not only for the purpose of proving malice, but to strengthen and corroborate the evidence for the State “that A did the killing.” The State having drawn upon motive and threats, the defendant would have the same right, and could, therefore, prove motive and threats on the part of 0 to kill B.
But suppose that the State leaves positive evidence and enters the field of presumptions from circumstances,— the case being one of circumstantial evidence alone,— can not the defendant follow in her wake, and enter the-*249same field, and show by circumstances that 0 did the killing? Again:—B is found dead on the roadside (suicide being out of the question), killed with buck-shot; the State proves that the defendant was seen leaving rapidly from the direction of the body, and that he had a strong motive and had seriously threatened to kill B; that he was armed with a shot-gun, and a number of other suspicious circumstances surrounding him. He fails to explain these inculpatory facts. With these facts the State seeks to convict him. Upon the trial the defendant proposed to prove that 0 was seen going rapidly from the direction of the body, and with a shot-gun, and that he had also a motive and had seriously threatened to kill B. The physical facts, at the place of the murder, show that but one person did the killing. The defendant is not permitted to prove these facts and is convicted. The State then prosecutes 0, and as he could not be allowed to show the facts upon which the first defendant had been convicted, he would also be convicted. It being certain that but one person did the killing, this illustration demonstrates that a terrible wrong has been committed upon one of these parties.
The grand and fundamental error, in this whole matter, consists in the fact that courts proceed upon the idea that absolute certainty can be attained by means of circumstantial evidence. And strange to say, they give to and surround circumstantial evidence with more sanctity and infallibility than is accorded to positive evidence. For we have found that, when the State relies upon positive evidence, the defendant may, by the same character of evidence, show that some other person killed the deceased. There is another peculiarity attending this subject; which is that the circumstances in behalf of the State are those which cannot be attacked by other circumstances. This process of reasoning leads to the conclusion that the probative force of a fact depends upon which side proposes *250to use it; or, to present it in a different shape, if 0 were on trial these same rejected facts would become pregnant inculpatory facts, but as the defendant and not 0 is on trial, they lose their probative force and become immaterial.
By reference to Walker v. State, 6 Texas Ct. App. 601, Boothe v. State, 4 Texas Ct. App. 202, and a long list of cases sustaining these decisions, it will be found that this proposition is stated, “ That the issue of the trial was the guilt or innocence of the defendant on trial.” This position would unquestionably be correct, if the guilt of another person, in no state of case, could tend to weaken the evidence adduced against the defendant. The guilt of the defendant is the issue in every criminal prosecution. The proposition asserts nothing from which any conclusion can be made bearing upon the question. To our mind it is assuming and begs the question. Who will assert that there are no cases in which, if the guilt of another were shown, the case as made by the State against the defendant would not be completely crushed? But such investigation, with reference to other parties than the accused, should not be permitted in cases either positive or circumstantial, unless the inculpatory facts are such as are proximately connected with the transaction. In other words, to show remote acts or threats would not be admissible unless there were other facts also in proof, proximately and pertinently connecting such third party with the homicide at the time of its commission. If, then, the guilt of another party is an attack upon, or raises a doubt of, the truth of the case as made by the facts against the defendant, evidence tending to prove this guilt is clearly admissible. The office of evidence is to satisfy the mind of the truth of a given proposition, and in criminal prosecutions that proposition is always the guilt of the accused.
There is an inconsistency, glaring and patent, in reía*251tian to this subject. If the case be one of positive evi ■ deuce, the defendant is permitted to prove by positive evidence that some one else did the killing. Would not the guilt of the defendant on trial be the issue in that case? Certainly. The effect of positive proof that some other person killed the deceased is to draw in question or surround with doubt the affirmative proposition “that the defendant killed the deceased.” If the case made by the State with positive evidence can thus be met, why not, in cases purely circumstantial, permit the defendant to meet the case by the same character of evidence, and show that another committed the homicide? Can the conclusion drawn from circumstantial evidence be more certain than that made from positive evidence? We think not.
We are, therefore, of the opinion that, when the issue on the trial is whether the defendant did the killing, he has the right to show that some other person committed the homicide, by the same character of evidence relied upon by the State for a conviction. If, however, the facts show that more than one person participated in the homicide, this evidence would possess no tendency to weaken the case as made by the State, and should therefore be rejected, unless under peculiar circumstances which we will not attempt to give at this time. A most excellent statement of the rule is made in Means v. State, decided at this term by our presiding judge. (Ante, p. 16.) It is thus stated: “ The rule is that such evidence affords no reasonable presumption or inference as to the guilt or innocence of defendant, and it is generally treated as hearsay or res inter alios acta. Of course the rule has its exceptions, but they can exist only in cases where the evidence is wholly and strictly circumstantial, and where, the mind having nothing to rest upon, seeks knowledge and light from every source, however dim, calculated to throw light upon the transaction.”
*252The exception is made in cases purely circumstantial. Suppose, however, that the State relies in the first instance upon positive proof, and the defendant meets that proof with positive evidence that some other person killed the deceased; now, in corroboration of their witnesses either party would have the right to prove motive, threats, and in fact all other inculpatory facts. The parties having left the field of positive evidence, and entered that of circumstantial, the rule as stated by the presiding judge does not conflict, but is in accord with the admissibility of the evidence in the illustration last made. See the case of the United States v. Hartwell, 3 Clifford, 221, for a departure from the old rule on a question analogous to this. Also Means v. State, decided at this term, swpra.
The third proposition is, did the court err in charging the jury “ That in every criminal prosecution, the accused is presumed innocent until his 'guilt is established by legal evidence, and the burthen of proof rests upon the State, and does not shift till the State has proved, to the satisfaction of the jury, the facts which constitute the offense charged; and when this is done, it then devolves upon the accused to establish the facts upon which he relies to excuse or justify the prohibited act.” It then devolves upon the accused to establish the facts upon which he relies, etc. In order to prove or establish a fact it must be done by evidence sufficient to lead a jury to believe it, and for this reason it must outweigh or preponderate the evidence which it is adduced to meet and control. Here, then, we have two affirmative propositions in one criminal case; first, the State must prove the facts constituting the offense charged; and second, then the defendant must satisfy the jury that these facts are not true,— take the burden, and convince the jury that the case as made by the State’s evidence is untrue.
The “ facts upon which he relies to excuse or justify ” must be established; this unquestionably means that they *253must be proved, and, if they must be proved, a preponderance of evidence in their favor must be adduced by the defendant. They may have been of sufficient strength to have created a reasonable doubt of the truth of the facts relied upon by the State, but this would not be establishing or proving them. It cannot be questioned that it devolves upon the State to establish by evidence the guilt of the accused beyond a reasonable doubt, and that the defendant, by his plea of not guilty, puts in issue every material allegation in the indictment. Now, is he required to plead specially any matter of justification or excuse? There is but one affirmative proposition in the case, and that is the guilt of the defendant. It is not divided into two parts; one of guilt as charged by the State, and the other of innocence supposed to be asserted by the defendant. He does not affirmatively plead that he is innocent, but denies that he is guilty, and the case is tried upon that issue throughout. The jury are not required to believe him innocent in order to acquit; the question is guilt, and not innocence; and this issue is affirmative in its very nature, and continues so throughout the whole trial. The correct principle is that when the defendant relies on no separate, distinct and independent fact, but confines his defense to the original transaction on which the charge is founded, with its accompanying circumstances, the burden of proof continues throughout with the prosecution.
What independent, separate and distinct fact was relied upon by the defendant in this case? None whatever. The issue, the struggle throughout the whole trial, was as to whether the defendant killed James Benton. There is not the slightest hint in the whole record at an excuse or justification of the killing. The theory and the only theory of the defense was that the defendant did not kill the deceased. The effect upon the rights of the defendant must have been terribly damaging, indeed, from such *254a charge. It presupposed that the defendant had killed the deceased, and called upon him to excuse or justify; thus assuming the existence of the very fact upon which the whole fight was made. The jury were in effect told by this charge that the State has shown that the defendant killed the deceased, and it now devolves upon him to excuse or justify the killing; thus assuming the very fact in issue in favor of the State, and shifting the issue to something else not presented by the evidence, nor thought of by the defense. We are, therefore, of the opinion that this charge was not proper under the case,- as made by the evidence. Wingo v. State, 66 Mo. 181; Stokes v. People, 13 American Rep. 492; Mohaher v. People, 10 Mich. 212; State v. Morphy, 33 Iowa, 270; State v. Norten, 34 Iowa, 131; State v. Underwood, 57 Mo. 49; American Criminal Law, sec. 707; Commonwealth v. McKie, 1 Gray, 61; Ake v. State, 6 Texas Ct. App. 398; Ainsworth v. State, 8 Texas Ct. App. 532.
We will not discuss the question as to whether this or a similar charge can properly be given in any case, except in those in which an independent, separate and distinct matter is interposed. The writer is of the opinion that it is not permissible in any case, unless such matter is relied on. That this charge in this case is not proper is held by all the judges of this court.
For the errors above pointed out, the judgment is reversed and the cause remanded. The other points raised by the assignment of errors will not likely arise again.
Reversed and remanded.