Dissenting.—I desire to add some observations to> what I have written upon two questions, as well as to notice some authorities.
And first as to the charge upon alibi. In support of my views of this, charge I cited no authorities in my original opinion, because I believed none were required. In that opinion I.stated that the charge was wrong because it is a question of probabilities. Is this a correct proposition?' If it is, then evidently the charge is incorrect and was calculated to injure the cause of appellant, because the evidence on alibi, if true, does; not show that it was impossible for the appellant to have been present, and this was urged by counsel for the State in argument before this court-at Galveston. But whether injurious or not, being excepted to at the time, we must reverse; and we have only alluded to the fact that counsel for the State urged that it was possible fol’ appellant to have been present in order to emphasize the error.
Let us return to the position above assumed: Must the proof show that the accused was not and could not have been present, or must it, under all the facts and circumstances in evidence, render it improbable; that is, so improbable as to raise a reasonable doubt of the truth of the State’s case? This last position must be sound, or alibi is a separate and distinct defense with the burden of its proof resting upon the accused. This is the rule in some States, but not in this. However, I do not desire to extend the discussion of this question, but to support my views, by the following authorities:
In Galloway v. The State, 29 Indiana, 447, the court say: “True, Diereis nothing in the averment to exclude the idea that he might have procured a conveyance after he separated from Galloway, but the time that, would necessarily be consumed in doing so would be such as to render it. improbable that he could have been at the robbery.” (Italics ours.) In *283exact accord with this case are the following: Stewart v. The People, 42 Mich., 225; Adams v. The State, 42 Ind., 374.
In Kaufman v. The State, 49 Indiana, 251, there being proof tending to establish alibi, the court gave the following charge: “ The defendant having introduced evidence for the purpose of establishing an alibi, or, in other words, to show that he was not guilty for reason that he was at a different place, if he failed to cover the whole time necessary when the crime may have been committed, then you would be warranted in paying no attention to such testimony.” ¡Now, if the charge in the case before us is correct, then it follows inevitably that the above charge was correct, for if the proof of alibi must tend to show that it was impossible for the accused to have been present at the place of the crime, the evidence of alibi, failing to cover the whole time, is irrelevant and should have been excluded. But what said the court to the charge in the Kaufman case? Riddle, J., says: “As a rule of law this instruction is erroneous. An alibi is a legitimate defense, and if the evidence touching it was sufficient to raise a reasonable doubt of appellant’s guilt in the minds of the jury, it should have been considered, although the alibi did not cover the whole time during which the crime was committed. Citing French v. The State, 12 Ind., 670; Adams v. The State, 42 Ind., 373; and Bines v. The State, 46 Ind., 311. Additional authorities could be cited, but I deem these sufficient to establish that the proposition is perfectly sound, to-wit, that in view of all the facts and circumstances in evidence, the proof of alibi must be such only as to render it so improbable that the accused was present as to raise a reasonable doubt of the truth of the State’s case.
But it is replied that the court instructed the jury that “if the evidence raises m your minds a reasonable doubt as to the presence of the defendant at the place where the deceased was killed, at the time of such killing, then you should acquit the defendant.” This is true. But by the first part of the instruction (the objectionable part) alibi is defined so as to render it unavailable to the defendant, unless the proof thereof makes it impossible for him to be present at the homicide; hence, as is so well said by counsel for appellant, a reasonable doubt as to presence predicated on this definition, is a reasonable doubt as to the character of presence defined—that is, the presence referred to and none other—a possible presence—the correlative of an impossibilty of presence.
Let us look at this subject in a practicable light. The jury are told, in effect, that unless the proof of alibi shows that appellant could not have been present, then such proof does not show an alibi. ¡Now, then, they are told that if they have a reasonable doubt of presence arising from evidence they should acquit. The jury take both paragraphs under consideration. They inquire first what must the proof show in support of this defense? Answer: That it was impossible for defendant to have been present. Does it do this? It does not. What shall we do with this *284defense? Ignore it, because he might have been present. How, this conclusion and disposition of the appellant's defense, so called, is properly justified by their instructions. But a juror suggests that “we are instructed that if we have a doubt of the defendant's presence to acquit.” “That is true,” another juror replies, “but you must agree with us that the proof of alibi fails to show that it was impossible for him to be present, and if this is so, there is no alibi in the case, because his honor, the judge, thus defines an alibi.” To this it is replied: “That is true; but what about the doubt?” It is answered: “We have not reached the doubt yet, because we have no alibi—the proof failing to show that it Avas impossible for defendant to be present.” Another juror enters the discussion and suggests that “we should construe these conflicting clauses together, and obey the whole instruction upon this point.”
How, to do this I say would be impossible. Why? Because if alibi is an impossible presence and the proof fails to show this, it is not in the case. If the jury should find from the evidence that it was not impossible for defendant to have been present, the reasonable doubt as to this defense would not be involved, for there is no alibi in the case.
By this, it is confidently believed, it is demonstrated that the two clauses in the charge on alibi are in direct conflict, and this being so, we can not tell which governed the jury in their finding upon this so called defense of alibi. How then, what is the Avell settled rule of this court under such a state of the charge? If objected to at the time a reversal follows as of course. If not objected to, we look to the whole record and, injury probably resulting, the case is reversed. I will not stop to cite authority in support of these propositions, for this court has uniformly so held.
My brother Willson in his original opinion says of the charge on alibi: “It is almost a literal and is a substantial copy of the one approved by this court in Walker v. The State, 6 Texas Court of Appeals, 576. It has been approved by this court in numerous subsequent unreported cases.” In the Walker case there Avas no objection reserved to the charge. The objection to the charge was that it was not sufficiently full, failing to explain the full meaning and legal effect of a defense of that kind. Judge Winkler, speaking for the court, simply says: “The charge objected to comes up to the requirements of a charge on alibi as laid down in Booth's case, especially Avhen read in connection with what follows the paragraph complained of.” My objection to the charge is, not that it was too meager, but that it states an incorrect proposition. This objection was not urged, and hence Avas not considered by the court, nor was it presented in the Booth case. But let us concede for argument that after full discussion such a charge was held sound. While this might be persuasive, still, if incorrect, we should not be governed by it and so perpetuate the error. That it is not correct to my mind is evident. That in cases unreported we have affirmed judgments in which the record con*285tained such a charge is true. But this could not he held an approval unless there has been objections to the charge at the time questioning its correctness upon the grounds now urged. If such be an approval, we have approved in the same way charges which were absurd, foolish, and against every principle of law.
In the opinion on this motion my brother Willson says: " The charge (upon alibi) is not as unfavorable to the defendant as many authorities would justify,” citing authorities. This is an absolute fact, and an hundred cases, it may be, can be cited in support of its truth. I will give a case which fully supports him; a case well considered, the opinion being written by a profound judge. In The State v. Ward, 17 Atlantic Reporter, 483, Taft, J., speaking for the court, says: " Exceptions were reserved to the charge on the subject of alibi. The jury were told that if the proof of it did not outweigh the proof that he was at the place when the crime was committed it was not sufficient. In this statement there was no error.” Here we have a charge not so favorable to the defendant as the one in this case.
Again, we have this proposition: "It is a defense resting on extraneous facts not arising out of the res gestee, and the onus of proving it devolves upon the respondent who alleges it.” Is this law in this State? I think not. The judge proceeds: "The burden being upon him, some courts hold that the evidence must exclude the possibility of the prisoner having been at the scene of the crime so as to prove the alibi beyond a reasonable doubt; others, that it must preponderate or outweigh that for the State. The latter was the rule adopted in the court below, and we think correctly.” Here we have law very unfavorable for the defendant, but who will assert that such are principles and rules of law in this State?
Continuing the opinion, the judge says: " Had the above been all the charge upon alibi evidence, there would be just grounds of complaint.” What! Complain that the law has been correctly charged? This is strange, unless the correct law needs qualification or modification. How here we have the qualification: “For while the evidence might not have been sufficient to establish an alibi, it was not therefore to be discarded, laid out of the case and not considered by the jury, which has been the error in many of the American cases.” It is evident to a logical mind that this qualification is an absolute retraction and repudiation of the rule which requires the accused to establish his alibi by a preponderance of the testimony, which rule is approved by the court and held to be sound.
The opinion proceeds: "After this instruction it was the duty of the court to go further, and tell the jury that if the alibi was not so established, evidence of it was not to be excluded from the case, but that it should be considered with the other evidence; and if upon the whole, including that in relation to the alibi, there was a reasonable doubt of *286the respondent’s guilt, he was entitled to an acquittal.” How, these propositions are diametrically opposed the one to the other. Let us place them side by side. First—The accused must prove his alibi by a preponderance of evidence. Second—Though the evidence does not preponderate in favor of his alibi, yet, if it raises a reasonable doubt of his guilt when considered in connection with the other evidence, he should be acquitted. How, I have this question to propound: If evidence of less probative force than that required to outweigh the evidence for the State (showing presence) will be sufficient to raise a doubt of guilt, why require the alibi to be established by proof outweighing that for the State?
In passing, I desire to say that when the burden is on the accused to prove a fact, the doctrine of reasonable doubt can not possibly apply in his favor, unless in every case proof of such fact, to create the doubt, preponderates in its favor, for if proof of less force will be permitted to create the doubt, the burden is not discharged by him, and hence is not on him. It would be a rare thing to find an opinion containing (on one question) more inconsistencies than this in the Ward case. I have referred to it simply for the purpose of supporting Judge Willson’s observation to the effect that authorities could be found much more unfavorable to the accused than the rule stated in this case. But they are not authority in this State.
I desire now to make some additional observations on the question presented by the fifteenth assignment of error, relating to the testimony of Barbee.
In response to questions propounded by counsel for defendant on cross-examination, the object of which questions being evidently to show the animus of the witness Barbee, and also to show an inducement or reason for Judy James’s testimony against the defendant, Barbee, over the objection of defendant, was permitted to state that Judy James stated to him that defendant was one of the men who took the deceased from her house, etc. As I have said in my original opinion, the statement of Judy -James was not admissible.
Judge Willson, in his original opinion, contends that the statement was n, part of a conversation between Barbee and Judy, and that it was drawn out by counsel for the defendant. The questions were not calculated nor intended to put in evidence this statement. Ho conversation was sought or elicited by the questions. What Barbee said and did to Judy was .sought and elicited, and nothing more. But it is contended that the statement of Judy was admissible under the statute (Code Crim. Proc., art. 751), which reads: “ When part of an act, declaration, or conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation, or writing is given *287in evidence, any other act, declaration, or writing which is necessary to make it fully understood, or to explain the same, may also be given in -evidence.”
How, if the defendant had given in evidence a part of the declarations and acts of Barbee, then the State would have been entitled (if it was not complete) to the whole of the act or declaration;. Or, if part of a conversation between Barbee and Judy James had been given in evidence, the State would have been entitled to all of the conversation. Or, if the declarations or acts of Barbee could not be understood without Judy’s replies, then they may have been admissible. If a detailed act, declaration, or conversation is given in evidence, any other act, declaration, or conversation which is necessary to make it fully understood is admissible. Barbee was perfectly understood. There is no contention on this point. Hence this provision does not apply. If Judy’s statement was admissible, it was admissible by virtue of the statute, and it was admissible whether she was a witness in the case or not, and whether she was living or dead at the time of the trial. I now propose to give an illustration which will demonstrate the fallacy of the position assumed to sustain the competency of this statement.
A is on trial for theft. B is introduced as a witness for A. He swears •to facts which, if true, and are believed by the jury, will defeat the prosecution. To show his animus and corruption the State asks him if he did not approach Mr. 0 and attempt to persuade him to swear to certain facts establishing an alibi? if he did not propose to give 0 $500 to swear, to these facts? B answers that he did, whereupon counsel for the defendant asks him what reply G made. B answers that 0 stated that he knew the time when the property was taken; that A was not the thief; that A was not at the place of the theft; that A was an honest man, and that the witnesses for the prosecution were perjured scoundrels, unworthy of belief, etc.
How, as before stated, if Judy James’s statement was competent evidence, it was so by virtue of the statute, and in fact could be used to prove the guilt of defendant because competent evidence. This being the case, the fact that she testified in the case has nothing whatever to •do with the question, for if indeed the appellant introduced the conversation, declaration, or acts of Judy, he is bound by them. But did he introduce them? Evidently he did not.
But take the case illustrated. Will it be contended that the statements of 0 could be used against the State as evidence of the facts there stated? By no means. The foregoing is all I desire to add to what I have already said upon this subject.
On the other branch of this question I desire to say that no case or •authority has been found authorizing the introduction of similar statements, if the statements were made after the disturbing influence was *288applied. All the authorities, so far as my research extends, hold that-when admissible at all, they must have been made prior to the application of the disturbing influences. 2 Phill. on Ev., 973, and note on same page; 1 Greenl. Ev., 469.
I am still of the opinion that the judgment in this case should be reversed, and that the motion should be granted.
Motion overruled.
Judges all present, with Hurt, J., dissenting.