This is a conviction for murder of the first degree, the penalty fixed being confinement in the penitentiary for life.
Appellant makes twenty-six assignments of error. I have carefully examined each in connection with the-brief for the State and the record. I desire to notice in this opinion only such of them as I deem to be of serious character, remarking that the points made and not discussed are held to be, if errors at all, not reversible errors. I will not take up the assignments in the order presented in counsel’s brief.
David James and his wife Judy were the tenants of appellant, and occupied a house of two rooms. In the absence of David, Judy being at home, Mrs. Brown, the deceased, and her son moved into the house, occupying one room, without the consent of any person. Several days after this, on the 7th day of December, 1887, about eight o’clock at night, three men, one being Henry Allen, broke open the door to the room occupied by Mrs. Brown and her son, seized and carried them off. Both were tied before they were taken from the house. On the next day, about a mile west of David James’s house, on the prairie, Mrs. Brown and her son were found. They were dead, having been killed by gun shot or pistol Avounds, or with some sharp instrument, or both.
The State relied (1) upon motive; (2) slight physical circumstances attending the homicide; (3) positive evidence to the identity of appellant as one of three who carried the deceased and her son from the house of David James; (4) the opinion of David James as to the similarity in shape and movements in appellant and one of the party which carried off Mrs. Brown and her son; (5) the dog matter. There may be other circumstances relied upon, but the above constitute the main facts for the prosecution.
To show that David and Judy James were mistaken or swore falsely, appellant introduced several witnesses by whom he proved that he was not at James’s house when Mrs. Brown and her son were taken away, but that he was at the house of J. 0. Cooper, who lived about twelve or fourteen miles from James’s.
How, under the facts of this case, the only method or means by which appellant could completely meet or cast a doubt upon the State’s case was such proof, which is commonly known and called proof of an alibi. This being the case, it was of the first importance that there should be no error in the charge of the court upon this subject. Counsel for appellant in their ninth assignment of error complain, and I think justly, of the charge upon this subject.
The court instructed the jury as follows: “Amongst other defenses interposed in this case by the defendant, is what is known in legal phraseology as an alibi—that is, that if deceased was killed as alleged, the defendant was at the time of such killing at another and different place from that at which such killing was done, and therefore was not and *270•could not have been the person who killed deceased, if she was killed. How, if the evidence raises in your mind a reasonable doubt as to the presence of the defendant at the place where the deceased was killed (if killed) at the time of such killing, then you should acquit the defendant.” This charge was excepted to at the time.
I have two objections to this charge: (1) It is wrong to instruct the jury that the defendant interposes an alibi as a defense, because an alibi is no defense at all, m any other sense than as rebutting evidence, tending to disprove the facts relied on by the State for conviction, or as evidence tending to cast or create a reasonable doubt of the truth of the facts relied on by the State for conviction.
Let us illustrate: A is charged with murder. B and C were present at the homicide. They swear to facts which make out a case of murder. D is also present, and swears to facts which, if true, defeat murder, or which might create a reasonable doubt in the minds of the jury as to the truth of the case as made by the testimony of B and 0. The facts sworn to by D would be a defense in one sense, and in the same sense would an alibi be a defense—both being an attack upon the case as made by the testimony for the State, and in no other sense are they defenses. The danger to the accused from a charge telling the jury that an alibi is a defense is this: It is calculated to impress the jury with the idea that the alibi is a separate and distinct issue presented by defendant for solution by the jury, and this being so, the jury will naturally hold the accused to proof of his plea, whereas the correct principle requires the charge to be so framed as to present but one issue, i. e., did the appellant kill and murder Mrs. Brown?
(2) The charge defines an alibi thus: “Amongst other defenses interposed in this case by the defendant is what is known in legal phraseology as an alibi—that is, that if the deceased was killed as alleged, the defendant -was at the time of such killing at another and different place from that at which said killing was done, and therefore was not, and could not have been the person who killed deceased,” etc.
In treating of alibi some of the books state that the accused who pleads or relies upon it must prove it; that the burden is placed upon the accused, and he must prove that it was impossible for him to have committed the offense, because he was at so great a distance therefrom. The rule casting the burden of proof upon the defendant is most emphatically repudiated by our Supreme Court in Walker v. The State, 42 Texas, 360. The false theory or principle which places the burden to prove alibi upon the accused (which no doubt rests upon the idea that alibi is a separate and distinct issue in the case), is the natural parent of that rule which requires the accused to prove that it was impossible for him to have been at the place where the offense was committed. Both of these rules rest upon the same reasons, and in each instance the reasons are fallacious. *271¡Now, in the charge under discussion, the court defines an alibi so as to require the proof thereof to show that the appellant was at a different place from that of the killing, and that appellant was not, and could not have been the person who killed the deceased. This is equivalent to requiring the proof to show that it was impossible for the accused to have been at the place of the homicide. This is wrong, because here is a question of probabilities. The evidence in support of an alibi may not show that it was impossible for the accused to have been at the place of the offense, and yet be such as to create a reasonable doubt as to his presence. The rule would reject all evidence of alibi except that tending to show that the accused could not have been present.
But it is urged by counsel representing the State that the charge upon this and all other questions should be construed as a whole, and that as the court instructed the jury that “if the evidence raised a reasonable doubt in their minds as to the presence of the defendant they should acquit.” This instruction, while correct, does not extract the vice from the charge even when tested as a whole. Why? (1) Because, as above stated, the charge is so framed as to impress the jury with the idea that an alibi is a separate and distinct issue, with the burden on appellant to prove it. (2) The'jury might solve the doubt against the appellant by holding from the evidence bearing upon the alibi that it was not impossible for the appellant to have been present and to have killed deceased.
The State relied upon two matters as motive moving appellant to kill the deceased: (1) That deceased and her son, without authority and by force, entered and took possession of appellant’s house. (2) That appellant and Mrs. Brown had been and were then in litigation about the title to land. Evidence supporting both of these matters was introduced by the State to show motive.
Appellant to meet the second ground introduced as a witness P. E. Peareson, wjio was and had been for years the attorney for appellant in the land suit. By this witness appellant proposed to prove facts which would tend to show the state of defendant’s mind concerning the said litigation—his knowledge of the same as gained from his attorney, the witness. The facts proposed, if true, tending strongly to eliminate this litigation from the case as a motive for the murder, the court in my opinion erred in rejecting them. Preston v. The State, 8 Texas Ct. App., 30; Bouldin v. The State, 8 Texas Ct. App., 332; Washington v. The State, 8 Texas Ct. App., 377; Noftsinger v. The State, 7 Texas Ct. App., 301; Cooper v. The State, 19 Texas, 443; Burns v. The State, 41 Texas, 351; Burrill’s Cir. Ev., 466; Roscoe’s Crim. Ev., 18, 19.
In a case depending upon circumstantial evidence the mind seeks to explore every possible source from which any light, however feeble, may be derived. If this be a sound and just rule for the prosecution, it should be for the accused.
*272Counsel for the State insist in reply to this matter “that the witness Peareson had stated all that could be of any consequence regarding the suit, and the questions asked him were wholly incompetent for any purpose.” I have compared the bill of exceptions with the testimony of Peareson as found in the statement of facts, and find that some important-matter was rejected by the court at the instance of the State. Among them are these:
Question: “ State to the jury whether or no Hr. Gallaher was advised by you as to the condition of his title and the prospects as to the result-of his suit?” By the answer the appellant proposed to prove that the attorney had advised him that there was no doubt as to his title to all the land he claimed.
Again: “State whether or not after that suit was brought and before Mrs. Brown was killed, Mr. Gallaher, through you as his attorney and through Colonel Dennis, did not offer to let Mrs. Brown have all the land she had any title to?” Answer: “He did.”
“ Is it not a fact that when the offer was made to her in court that her lawyers and the judge presiding advised her to accept?” To which question the witness would have ahswered, that being of counsel for Gallaher he and his associate advised him that there was no doubt as to his title to-all the land which he claimed; that in open court, as counsel for Gallaher, he and his associate counsel offered to permit Mrs. Brown to take judgment for 200 and odd acres of land claimed by her; that that was all the records showed she was entitled to; that her own counsel and the presiding judge advised her to accept the offer; that Gallaher was advised by his counsel that there was no doubt of his holding all the land claimed by her; that there was no cause to doubt the result, and that he was fully satisfied he would hold it, and did not express nor seem to feel any anxiety about the case, and that he did not in any way delay the case.
Under the circumstances of this case I am clearly of the opinion that, these facts were admissible, and that it was error to reject them.
A bill of exceptions duly saved by defendant’s counsel shows: “J. G. Barbee, a witness for the State, was asked on cross-examination by the defendant’s counsel if he, witness, did not say to , Judy James that her husband’s neck was in danger if she did not tell what she knew.” To-which Barbee answered, “I do not know that I used language as strong as that, but I told her she was in a critical situation; that the parties had been taken from her house and that she ought to know something about-it. I used words to the effect that if she did not tell what she knew she and her husband were in danger. I can not recollect my words, but my language was to that effect.” Thereafter, on re-examination of the- said Barbee by the State, the State’s counsel said to the witness, “You were asked by the defendant’s counsel if you did not tell this woman, Judy James, that she and her husband were in great danger; that she ought *273to tell what she knew about it, and that she was bound to know. I will ask you what she said in reply?” The defendant objected upon the ground that the testimony sought to be elicited was hearsay arid irrelevant, and upon the further ground that the indictment showed that she (Judy James) was a witness for the State in-the case. The State’s counsel reiterating, said to the witness Barbee, “ I asked you when you made that statement to her what her reply was, and what information she gave you?”
The objection made by defendant was overruled for the reason that the testimony was admissible in connection with the answers of the witness Barbee drawn out by defendant’s counsel on the cross-examination of the witness on the same subject, and the witness was thereupon permitted to answer as follows: “Her reply was something to this effect: that she was afraid to state it out there in that crowd; that Mr. Gallaher was one of the men; that she heard the shots over there in the prairie (pointing the direction to witness); that they (she and her husband) were afraid to go out there to see, and that they had not been out there.” The witness further said that “ there was no one but her and me present when this conversation occurred; but shortly afterward Mr. Jones, the sheriff of Wharton County, came and we had an interview with her.”
This testimony, in my opinion, was not admissible upon any ground. But it is contended by counsel for the State that it was a part of the conversation between Judy James and Barbee. But the questions propounded by counsel for appellant did not seek to elicit this conversation, nor were they so framed. Barbee, at the instance of the defense, did not state one word that Judy James said to him, Barbee. It is true that defendant sought to show by Barbee that undue influences may have induced her to swear that Gallaher was one of the party which carried off the deceased and her son. Conceding this, the State could show that she had made the same statement before such influences were applied. This could be done to support her, and to refute the inference that she was induced to swear as she did by such influences.
But her statements made after the influences had been applied to her were not admissible.
Upon this subject Mr. Wharton says: “When a witness is assailed on the ground that he narrated the facts differently on former occasions, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were in harmony with those made on the trial. Thus, the declarations of a complainant in bastardy, whether made before or after her formal accusation upon oath as to the paternity of her child, have been held inadmissible in evidence, when offered by her either to show constancy or to strengthen her credit, since they have no tendency to da either. They are no proof, such are the reasons, that -entirely different statements may not have been made at other times, and are therefore no *274evidence of constancy in the accusation; and if the sworn statements are of doubtful credibility, those made without the sanction of an oath or its equivalent can not corroborate them. On the other hand, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that such evidence should be rebutted. It has consequently been ruled that statements made by the witness corroborating his evidence upon the trial, such statements being uttered soon after the transaction in litigation, and at a time when the witness could not have been subjected to any disturbing influences, are competent when proof has been offered to impeach him, by showing that he had recently fabricated the narrative, or that he testified corruptly. The witness called to corroborate the impeached witness in this respect is usually confined to the fact that the statement was made to him (as stated by the impeached witness), and is not permitted to give the particulars of the statement.” Wharton’s Law of Evidence, sec. 570, vol. 1.
It will be seen from the above that the statement made by the witness corroborating his evidence on the trial must be uttered soon after the transaction occurred, or at least at a time when the witness could not have been subjected to any disturbing* influences. I believe no case can be found holding that a corroborating statement made after the disturbing influences were applied.or may have been applied, is competent, admissible evidence.
Again, it will be observed that the rule cited from Wharton excludes the particulars of the statement. He says: “ The witness called to corroborate the impeached witness in this respect is usually confined to the fact that the statement was made to him as shown by the impeached witness, and is not permitted to give the particulars of the statement.” Rex v. Neville, 6 Cox C. C., 99.
But it is urged by the State that, conceding the incompetency of this" evidence, there was no injury to appellant, because Judy James stated at the time deceased was taken from the house that appellant was one of the party, and hence she could not have been wrongfully influenced to thus swear upon the trial.
The testimony of this witness is voluminous, especially that given on cross-examination; and after a very careful examination of all that she says bearing upon the identity of appellant as one of the party who took deceased and her son from the house, I am impressed with the conviction that her testimony is very unsatisfactory. _ It is true that she said to her husband when the three men came and passed through the kitchen into the main room in which Mrs. Brown and her son were, that “"she believed one of the party was Mr. Gallaher.” She did not state to her husband that she knew it .was Gallaher. She was not positive, but believed him to be one of the party. How, when as told by Barbee, after she and her *275husband had been indirectly threatened with prosecution for the murder, her husband being under arrest, she is not in doubt, but is positive that Gallaher was one of the party. This positive proof to a fact which, if true, seals the fate of the appellant, was obtained through Barbee improperly and illegally, without opportunity to cross-examine the witness Judy James when she was making her statement to Barbee. For when upon the trial she swears in a manner positively to appellant as one of the party, yet no honest candid man can read and analyze her testimony, that given in chief and upon cross-examination, and not be impressed with the conviction that she was not positive then—that is, when she saw 'the parties at the house when the deceased and her son were taken away— that Gallaher was one of the party. A careful examination of her evidence will impress an investigating mind that she was speculating, or at the most, simply believed him to be one of the party. Attention is specially called to her cross-examination bearing upon this question.
On the fatal night she believed merely. On the trial she is positive, with conflicting and unsatisfactory reasons for being so. To Barbee, positive. How, under these circumstances I hold that this incompetent evidence may have had a serious effect upon the jury. They may, and probably did aid and strengthen Judy's testimony by that of Barbee. If she had been positive and clear as to the presence of appellant at the house and positive then, when the party was there, though inadmissible, her statement to Barbee might have been held harmless, though I find no authority for its admission, nor that, being admitted, it would be held without injury.
A number of witnesses swear to facts strongly supporting the theory of •defendant, to-wit, that he was not at the place of the homicide. This was very important testimony, and if true, or had the effect to create a reasonable doubt of appellant's presence at the homicide, would or should have produced an acquittal. The State introduced a number of witnesses by whom several witnesses who swore to the alibi were impeached—their character for truth and veracity being bad in the opinion of the impeaching witnesses.
Counsel for appellant at the time objected to the charge of the court because, as alleged in their brief, it failed to instruct the jury that a witness sought to be impeached may still be believed by the jury, and that, notwithstanding such impeaching testimony, they are still the judges of the credibility of all the witnesses sought to be impeached.
Examining the bill of exceptions I find that the objection was as follows: “Because charging that the jury are the judges of the credibility of the witnesses, the charge fails in that connection to charge that this included the credibility of the witnesses sought to be impeached, and that, after considering all the testimony of all the witnesses, if the jury *276had a reasonable doubt of the defendant's guilt he is entitled to be acquitted.''
The learned judge instructed the jury as follows: “You are the sole-judges of the weight of the evidence and the credibility of the witnesses.” Evidently this means the weight of all the evidence, that given by the witnesses sought to be impeached as well as that given by the other witnesses. So with reference to the credibility of the witnesses, it means-the credibility of all the witnesses. Notwithstanding the impeaching-testimony, the jury were still the judges of the credibility of the witnesses; and this they were told in language sufficiently plain to leave no room to doubt. I have examined all the cases and authorities cited by counsel for appellant, but find no case or text which holds that if the-court fails to charge the jury that in case there has been evidence tending to impeach a witness, yet they are still the judges of his credibility, would be error. Cases can be found in which, under peculiar circumstances, it has been held error to omit in the charge “ that the jury are the judges, of the weight of the evidence and credibility of the witnesses.”
For the reasons mentioned above the judgment should be reversed.
[Note.—The foregoing opinions on the merits of the appeal, the majority of the court affirming the judgment, were delivered at the Austin Term, on the 28th day of June, 1889. The motion for rehearing was taken under advisement and transferred to Tyler, where, on the 7th day of December, 1889, by the same division of the court, the motion was-overruled, in the opinions which follow below. The case is now reported under the Tyler number, but the record appertains to, and is on file at the Galveston branch.-—Reporter.]