No. 3357. | Tex. Crim. App. | Jan 30, 1892
Lead Opinion
The only questions raised on appeal in this case are objections urged to supposed defects in the charge of the court as given to the jury. It is objected that the charge defined "murder in the first degree" and "express malice," when this issue was not in the case, appellant having been previously acquitted of murder in the first degree. If any error was committed in this direction — which we do not concede — it was fully cured by the court expressly stating to the jury that the defendant had been acquitted of murder in the first degree, and in applying the law solely to murder in the second degree, as it might be evidenced by the facts adduced on the trial.
The court did not err in instructing the jury as to the law of perfect as well as imperfect self-defense. In our opinion the evidence called for such a charge. Meuly v. The State, 26 Texas Ct. App. 274[
Defendant testified in his own behalf on the trial. His counsel asked of the court a special requested instruction, as follows. "Under the law, a defendant in a criminal case has the right to testify in his own defense. The jury are the exclusive judges of the credibility of his testimony, and the weight to be given to it. As a witness, the defendant is to be judged as other witnesses are judged and weighed, viz., by their appearance, demeanor on the stand, and the facts and circumstances surrounding them." This instruction was given by the court, with the following words added thereto by the judge: "Given with the additional statement, that in determining the credibility of the defendant, who testifies in his own behalf, his interest in the issues involved is to be considered."
It is urged that the court erred in making this addition to the special instruction as asked by defendant. Had the court of its own motion given the special instruction, without being requested to do so, we, perhaps, would have held that the instruction was erroneous, because it is error to single out and instruct upon the evidence of any particular witness in a case; but the defendant's counsel requested the instruction, and in making the additional statement the court did not render the instruction subject to the objection that he was singling out a particular witness in the case, and consequently such objection is not tenable. What the court added to the special instruction was clearly the law, and, if he intended *167 giving the special instruction at all enunciatory of the principles of law pertaining to the subject, then his addition to it only tended to make it more complete and clear to the jury, by informing them what their whole duty would be in determining the credibility of the defendant's testimony. Under the circumstances presented, we do not believe that the supposed error in adding to the special instruction is maintainable.
We have given this case our mature consideration, in the light of the able brief filed by counsel for appellant, and our conclusion is that the charge of the court is a full, fair, complete, and ample presentation of the law upon all the legitimate issues raised by the evidence in the case. We have been unable to find any error of omission or commission in the conduct of the trial of this case, which in our opinion would warrant a reversal of the judgment, and it is therefore affirmed.
Hurt, J., concurs. Davidson, J., enters disqualification, and did not sit in this case.
[After the above opinion was delivered, White, Presiding Judge, having resigned, Simkins, J., was appointed; and he and Presiding Judge Hurt having disagreed on the motion for new trial, Hon. L.H. Brown was appointed Special Judge in the case. — REPORTER.]
Addendum
The above case was submitted to the court at the last Galveston Term, and it was upon the hearing affirmed; whereupon a motion for rehearing was filed, but for want of time it was not considered by the court, and was by proper order transferred to the Austin branch of this court, and said motion is now before us for hearing. The defendant, in support of his motion for rehearing, urges but a single ground, which is, that his special instruction asked in the court below should have been given, without the addition thereto, which was made by the court of its own motion, as a qualification of said requested instruction; the charge asked being as follows, to-wit: "Under the law, a defendant in a criminal case has the right to testify in his own defense. The jury are the exclusive judges of the credibility of his testimony and the weight to be given to it. As a witness, the defendant is to be adjudged as other witnesses are judged and weighed, viz., by their appearance, demeanor on the stand, and the facts and circumstances surrounding them." And the addition thereto made by the court, being as follows, to-wit: "Given with the additional statement, that in determining the credibility of a defendant who testifies in his own behalf, his interest in the issue involved is to be considered." It appears from the record of the case that the making of said addition as a qualification of said requested instruction, *168 and the giving of said instruction, with the qualification, to the jury by the court, was promptly excepted to by the defendant at the time it was given.
It is also made to appear that in the argument before the jury, counsel for defendant had admitted that the jury might, in determining the credibility of the defendant as a witness, consider his interest in the result of the prosecution. This is made to appear by an indorsement made by the judge on the bill of exceptions taken by defendant to the court's action in reference to the requested instruction; and it might be important were it not for the fact that the timely exception of the defendant makes it necessary for us to determine, not whether the action of the court in the matter complained of operated to defendant's prejudice, but whether or not it was legal error. If the court had of its own motion given the charge requested by defendant, and the addition made to said charge by the court, it would, in our opinion, have been objectionable upon the ground that it would have been singling out a witness from those testifying in the case, and calling special attention to his testimony; and it would have been a charge upon the weight of his testimony, and consequently a charge upon the weight of the testimony in the case. The law in this State is, that the jury are the exclusive judges of the weight of the testimony and credibility of the witnesses, and no interference by the court with the prerogative of the jury in these respects can be allowed. There are some exceptions to the rule thus broadly laid down, made by statute; for instance, where a homicide is shown by the evidence, and no other fact is shown in connection with it, the law implies that it was malicious, and the court should so instruct the jury. But in cases where, by law, an artificial importance is given certain facts, the court instructs the jury upon the weight of such evidence, not because it may be in consonance with enlightened reason and experience, but because there is a plain statute requiring the court to do so.
To further illustrate the exception to the rule as laid down, the court is by statute required to instruct the jury as to the credibility of certain character of witnesses, as for instance accomplices; and when these classes of witnesses appear in a case, the court must instruct the jury upon their credibility, and for the reason that the statute requires it to be done. Outside these statutory exceptions, the rule as stated has stood intact, and has been most jealously guarded by this court. As to the credibility of all classes of witnesses other than those to whom an artificial credibility is fixed by statute, and as to the weight of every species of evidence except such as by law is given a special weight, the jury are to be the judges, and the exclusive judges, and the court should not by its charge, to any extent, even the slightest, interfere with their prerogative. The statute of this State, which invests the accused in a criminal case with the right to testify in his own behalf, places him in precisely the same attitude *169 with reference to the case as other witnesses are placed. It simply makes him a witness, and adds nothing more, except it is left to his option to testify or not. And therefore the weight to be given to his evidence and his credibility as a witness are matters to be determined by the jury alone, as in the case of other witnesses testifying in the cause. If it be error for the court by a charge to single out any other witness in the case, and call the jury's attention to the evidence, and to intimate to the jury an opinion as to the weight of the evidence of such witness, then it is also error for the court by a charge to single out the defendant, who has testified in his own case, and call the jury's attention to his evidence, and intimate an opinion to the jury as to its weight. A contrary doctrine is held by the courts in some of the other States of the Union, but it will be found on examination that in all, or nearly all, of them the decisions were made under statutes materially different from the statute of this State on the subject.
It could not have been intended by the law making power in this State that the court should by its charge furnish to the jury tests by which to judge the credibility of the witnesses testifying before them. In the first place, in the very nature of things the court could not well do this. The field is so wide in which the circumstances are to be gathered on which the jury are to base their opinion, that the court could not conveniently cover it in a charge. Besides, our system of jury trials proceeds on the theory that jurors are men of intelligence, and that the rules of reason and common observation are known to them, which will enable them to determine the credibility of the witnesses, and the weight to be given to their testimony, and that in reference to these matters they need no instructions from the court, unless the law has given a certain weight to some fact before them, or given to it a particular bearing affecting the credibility of some witness testifying before them. But, in the second place, the Legislature by a positive statute has prohibited the court from charging upon the weight of the testimony. This inhibition clearly, to our minds, prohibits the court from singling out a witness, and instructing the jury as to any tests they are to apply in determining his credibility.
For illustration, let us suppose the judge should instruct the jury as to the test of interest. Does he not thereby intimate to them that the circumstance of the interest of the witness in the result of the prosecution, in the opinion of the court, affects his credibility, else why mention that circumstance as a test? It is, in substance, we think, saying to the jury: The witness is interested in the issues involved, and it is the opinion of the court that that fact affects his credibility as a witness, and, by reason of it, his testimony is more or less weakened. A similar charge in all respects to the instruction asked in this case, taken with the addition thereto made by the court, was declared by our Supreme Court to be a charge upon the weight of evidence. The charge is found in the case of Willis v. Whitsitt, *170
In the case of Brown v. The State, decided by this court, and reported in 2 Texas Court of Appeals 115[
This court, in the opinion delivered in this case at the last Galveston Term, in effect held, that if the requested instruction, with its qualifications, had been given by the court of its own motion, it would have been error — such error as would have required a reversal of this case. A reexamination of that proposition has more fully convinced us of its soundness, and we hold that said requested instruction, with the addition made thereto by the court, as a qualification thereof, is a charge invading the province of the jury; intimating, as it does, the opinion of the court as to the credibility of the defendant as a witness in his own behalf, and being a charge, to some extent, on the weight of his testimony; and should said charge have been given by the court of its own motion it would have been error fatal to the judgment.
This court, in that opinion, recognizing the well established doctrine that when a defendant asks an improper instruction, and it is given by the court, he will not be heard to complain, extended the said doctrine, so as to allow the court, of its own motion, to add to said requested instruction other improper matter, being kindred to that contained in the requested instruction, and held that as to this additional charge the defendant was also estopped to complain; and on this view of the case the *171 judgment was affirmed. Upon carefully reconsidering the question, we have concluded that we were in error upon that point, and that the estoppel should operate against the defendant only to the extent of the instruction asked by him. For the court, of its own motion, to add to the requested instruction of the defendant another charge, in itself also illegal, and add it over defendant's objection, and give it in charge to the jury over his objection, and to hold that in such a case the doctrine of estoppel could be invoked to bind him to abide by it, we now think, after more mature deliberation, is an unwarranted extension of the doctrine of estoppel. This conclusion reached by us leaves the charge of the court, given as a qualification of the requested instruction of the defendant, to stand by itself, and in view of what has been said in this opinion, it can not stand, and necessitates a reversal of this case. The motion for a rehearing is granted, the judgment rendered at the last Galveston Term is set aside, and the cause is reversed and remanded.
Reversed and remanded.
Hurt, P. J., concurs. Simkins, J., dissents. Davidson, J., disqualified. *172
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