Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years.
Appellant reserved an exception to the court's refusal to allow him to propound the following questions on cross-examination of the State witness W.B. Bates: "Immediately after arresting defendant, did you ask him where the dead man was? Did he [defendant] not say that he left him in the back part of Losano's saloon, and that he knew nothing more of his whereabouts?" The State objected on the ground that same were self-serving declarations on the part of appellant; and the court, in his qualification to the bill, states that the statements were made many hours after the killing. We think the *Page 552 State's objection was well taken, and the court did not err in sustaining the same.
Appellant also complains of the court's refusal to permit him to propound to his witnesses Lee Riggs, Mike Nilar, Dennis Kelly, Herman Lege, and Jos. Dunn, on direct examination, the following questions: "Do you know the general reputation of the State's witness Zeferino Martinez, in the community in which he lives, for being a law-abiding and peaceable man? And did you know whether he is a man easily frightened or intimidated?" The State objected because irrelevant and immaterial, which objections were sustained by the court. Appellant had been permitted to examine all of said witnesses to the reputation of the prosecuting witness for truth and veracity in the community in which he lived, and all of them had stated that his reputation in that regard was bad. We do not think the reputation of the witness for being a violent, quarrelsome, and dangerous character, and not easily frightened or intimidated, was material to any issue.
We think the court sufficiently charged on accomplice's testimony, and hence there was no necessity of giving the special charge requested by appellant.
Appellant requested the court to charge on alibi. The judge, in approving the bill presenting this matter, insists that the issue of alibi is not raised by the evidence. Appellant testified to a state of facts showing clearly, if true, that he was not at the place where the homicide is alleged to have been committed. This being the case, we think the issue of alibi is raised. We held in Wilson v. State, ante, p. 115, that the charge on alibi should be given where defendant swears that he was at another place at the time of the alleged crime. We do not understand it is necessary for the defendant, or any witness testifying for appellant, to swear in so many words that he was at another and different place than that of the homicide, in order to raise the issue of alibi. But, if the evidence shows that he was at another or different place from the scene of the homicide, then the issue of alibi is raised, regardless of how the statement is made. It is the province of the jury to pass upon the sufficiency and truthfulness of the defenses urged by appellant. It is the province of the court to charge, under the statute, all the law applicable to the facts. We do not think this was done in this instance. Smith v. State (Texas Crim. App.), 49 S.W. Rep., 583; Smith v. State (Texas Crim. App.), 50 S.W. Rep., 362. In so far as the case of Byas v. State, ante, p. 51, indicates a converse holding to the above, the same to that extent is hereby overruled. However, an inspection of this case shows a different state of facts from that case. In that case the court requested appellant, if he desired a charge on alibi, to write out the same, and it would be given, but appellant refused to do so. In this case, however, appellant tendered a special charge, and excepted to the failure of the court to give a charge on alibi. *Page 553
Appellant requested the following charge: "You are further instructed that to support a capital offense more is demanded by law than a strong suspicion or strong probabilities of the guilt of the accused. The evidence must, to a moral certainty, lead to the conclusion of his guilt beyond every other reasonable hypothesis, before you can convict defendant." We do not think the court erred in refusing to give this charge. His next complaint is with reference to the refusal of the court to charge on the voluntary recent use of ardent spirits as contained in his special charge. The charge, as far as applicable, was given in the main charge of the court. He complains because the court charged on murder in the first degree, because, as he contends, the evidence does not raise that issue. We think that the evidence does raise that issue. He contends that the charge of the court was not signed by the judge, but an inspection of the charge itself shows it is properly signed. Complaint is made of the verdict of the jury, finding defendant guilty of murder in the second degree "as charged in the indictment;" contending that no such degree of murder is charged in the indictment. The indictment charges murder, and this includes murder in the second degree, and the fact that the jury wrote their verdict as they did would not affect the same. For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.