Jack Thornton, the • appellant, was indicted in the district court of Fort Bend county for seducing Maria Glenn. OhJ *534the 9th day of April, 1884, Maria, in the town of Eichmond, married the appellant. On the 11th of April, 1884, she was found dead in an old field known as the “Nolen field,” near th,e Brazos river, with her throat cut from ear to ear. For this homicide Jack Thornton was arrested, indicted, tried and convicted of murder of the first degree, his punishment being assessed at confinement in the penitentiary for life.
Upon the trial the State introduced as a witness Louis Williams, who had been convicted of two felonies. Defendant objected, and adduced in evidence, in support of his objection, two certified copies of the judgments of the district court of Caldwell county, showing convictions and sentences in two cases of forgery. This objection was met by the State by the introduction of pardons by the Governor. Defendant still objected to the competency of Williams, because he says that a pardon cannot relate back and enable the witness to testify ■ to facts which occurred after conviction and before pardon; that the Governor has no power to restore competency to a witness to "testify to facts coming to his knowledge while a convict. The court Below overruled the objection and Williams testified to material facts against defendant; to all of which defendant excepted and reserved his bill.
. We cannot possibly comprehend how the fact that a witness was, at the time he perceived the facts, a convict, can affect his competency, if competent when he relates them to the jury. Being a convict, and hence incompetent at that time, certainly would not in any way affect his powers of perception. He could perceive, grasp and retain the facts as well, being a convict at the time the facts transpired, as if no taint had ever attached to him. Being pardoned and hence competent when offered as a witness, his incompetency when the facts were observed cannot possibly affect the question.
Nor does the admission of facts in evidence observed by the witness when a convict -impinge the rule as to ex post facto laws. The rules of evidence are not altered; less or different testimony than the law required at the time of the commission of the offense, in order to convict, is not received and held competent to convict defendant. Each and every fact sworn to by Williams was admissible by law when it occurred, and by the reception of the evidence of Williams no less testimony is held sufficient to convict than was required at the time the offense was committed. (Cooley’s Const. Lim., p. 322.)
There was evidence tending to prove an alibi, and upon this subject the court charged as follows: “That if they (the jury) *535entertained a reasonable doubt of the presence of defendant, Jack Thornton, at the place Maria Thornton was killed at the time of the killing, and if you entertain a reasonable doubt that at the time the defendant was not there but elsewhere or at his own house, then the defendant would be entitled to the benefit of such doubt, and in such case you will acquit him.” The objection to this charge, made by defendant, is “ that it was so constructed, and couched in such vague language that a jury could not interpret the same to defendant’s benefit.”
This is a very plain, clear and pertinent application of the law to the facts in the record bearing upon alibi, and is without objection.
Counsel for appellant requested the court to charge the jury that the defendant could not be convicted upon the testimony of an ex-convict unless corroborated by other evidence. This was refused.
While Mr. Greenleaf says that a pardon granted - after the prisoner has suffered the entire punishment awarded against him restores his competency, though he would in such case be entitled to very little credit, yet it does not follow, under our practice, that it would be the duty of the trial judge to so instruct the jury.
Our statute prescribes that a conviction shall not be had upon the ■ uncorroborated testimony of an accomplice, and this should be given in charge to the jury; but we have no such rule as to a conviction upon the uncorroborated testimony of an ex-convict. If, however, a conviction should be obtained alone upon the testimony of an ex-convict, the court, in the exercise of a sound discretion, might grant a new trial. This would depend largely upon the nature of the crime for which the witness had been convicted.
In this case the witness Williams, though a pardoned convict, was most cogently corroborated. In fact, if he had not been introduced at all, the testimony of the other witnesses, if not sufficient to sustain the verdict, makes a very strong case against defendant.
In closing the argument the district attorney stated to the jury “ that it was the duty of defendant and his counsel to have the blood on defendant’s shirt analyzed, so as to explain to them whether it was human or animal blood; and also, in referring to one of defendant’s counsel as county judge, who, controlling the county finances, should have had this anatysis made.” If there was doubt as to whether the stains on defendant’s shirt was the blood of a human being, before this (the stains) could be used as a fact against him, they should have been analyzed and clearly shown to have been the blood of a person. The duty of making the analysis rests upon the party desiring to use the fact. But we certainly cannot reverse a *536judgment because the district attorney was in error as to who,— which party,— should assume the duty of making the analysis. The best of lawyers err with regard to the burden of proof.
[Opinion delivered March 10, 1886.]It is urged by counsel that the court erred in overruling the motion for a new trial, for the reasons heretofore considered, and because the verdict is contrary to the law and the evidence. We do nbt think so; for, in the light in which we view the testimony, the law and evidence warrant the verdict and judgment. The evidence we think very clearly supports the verdict, and, if necessary, this is susceptible of moral.demonstration.
The judgment is affirmed.
Affirmed,.