Hurt J.
George Hackett was tried and convicted for murder of the first degree, and his punishment assessed at death.
We will consider the assignments of error in the order presented in the brief of the appellant, except those relating to the charge of the court, which will be considered last. The first error assigned relates to the overruling of the defendant’s application for a continuance. In regard to this matter, there was no error of which the defendant can complain, the witness Bettie Boulding being present in court before the evidence was concluded.
The seventh assignment of error is, that “the court erred in overruling the defendant’s motion for new trial; 1, on acount of newly discovered evidence; 2, in that the court allowed the State to introduce Bettie Boulding on the stand, in the face of the written agreement to read the statement of what her testimony would be.”
With regard to the last ground in this assignment, we are informed by the record that the defendant had not been served with a copy of the venire facias, and that the cause was about to be postponed, when a written agreement was entered into by the defendant and the county attorney to the effect that the defendant would announce with the right to read to the jury, as [412]*412evidence, the testimony of Bettie Boulding as set forth in the defendant’s motion for continuance.
There was nothing in this agreement which inhibited the county attorney from introducing the witness, if her presence could be had. Certainly the defendant could not be heard to complain of the introduction of a witness who, according to his oath, would swear to such a perfect defense to the charge pending against him. If this motion for continuance was made in good faith, the introduction of this witness would have been heard with perfect satisfaction. We are of the opinion that, notwithstanding the agreement, the county attorney had the right to introduce and examine the witness Bettie Boulding. This, however, was not allowed when the defendant objected.
Counsel for the defendant assigns as error the charge of the court which relates to the evidence of this witness. The charge was, in substance, that the written statement contained in the motion for continuance should be received and given the same weight, and no more, as if she had been on the witness stand. Counsel insists that the rule stated in Skaro v. The State, 43 Texas, 88, is in point. The rule there stated is “that an admission that a witness, on account of whose absence a continuance is asked, would swear, if present, as stated in the affidavit for continuance, will not defeát the application.” If the defendant in the case in hand had been legally entitled to a continuance, the above rule would apply; but, as he was not injured in this matter (the witness Bettie Boulding appearing in time to be used as a witness), the rule has no application whatever.
We will now consider the charge of the court, in which we think there is error. In the twelfth subdivision of the charge the court instructed the jury as follows:
“ It is for the jury to determine the facts from the evidence before them, and applying the facts thus ascertained to the law as above given you, it will be your duty to deduce the guilt or. innocence of the defendant,” etc.
Deduce the innocence of the defendant! Mr. Webster says that “deduce” means “to derive by logical process; to obtain or arrive at as the result of reasoning; to infer.” Reasoning is nothing but the faculty of deducing unknown truths from principles already known.
To justify an acquittal, must the innocence of the defendant be deduced, reasoned out, or inferred, by applying the facts ascertained to the law as given by the court?
[413]*413It is well settled in criminal law that the jury need not believe the defendant innocent in order to acquit. The State asserts an affirmative proposition, which is the guilt of the defendant, and the jury must acquit by finding not guilty unless the State establishes this proposition beyond a reasonable doubt. If the jury are required to deduce the guilt or innocence of the defendant from the law and evidence (under a rule of criminal law), they would be placed in a very perplexing and inconsistent condition. The rule of criminal law referred to requires the jury to believe from the law and evidence that the party is guilty beyond a reasonable doubt, before they will be warranted in law to convict. The jury may believe him guilty; this belief will not suffice unless from the law and evidence they are satisfied of his guilt beyond a reasonable doubt; and if not so satisfied they, under the law, must acquit by finding him not guilty. They are not required to believe him innocent. The verdict of not guilty is simply, in effect, to deny that the State has established the affirmative proposition, which is the guilt of the defendant, beyond a reasonable doubt; and is not a declaration of innocence. The jurors may believe him guilty, but can not, because of doubt, convict. Under this charge they can not acquit because they believe him guilty. They have deduced his guilt, but not beyond a reasonable doubt, hence can not convict. They have not deduced his innocence; hence under this charge they can not acquit.
We are of the opinion that this charge is erroneous, and is in direct conflict with the rule that the person is presumed innocent until his guilt is established beyond a reasonable doubt.
We are of the opinion that the law was not applied to the theory of the case presented by the evidence of the witness Bettie Boulding. The facts expected to be proved by this witness, as found in the motion for continuance and by agreement read to the jury, are as follows: “That she was present at the time of the difficulty. That Major Williams struck the defendant in the house without any provocation whatever, and also drew an open knife on the defendant and tried to cut him with the knife; and that the defendant, to keep Williams from cutting him, ran out of the house; and that Williams immediately followed the defendant out of the house into the yard with an open knife in his hand, and was trying to cut the defendant with the knife; and that two or three persons were assisting Williams in his efforts to get to defendant with the knife; that Williams was [414]*414mad and cursing the defendant; that, while Williams was pursuing and cursing the defendant, and so being assisted by other persons in the yard, the defendant struck with his knife in his own necessary self-defense. That the defendant was all the time, from the beginning to the ending of the difficulty, at the time and place acting in his necessary self-defense, and was all the time trying to prevent a difficulty and to avoid any collision with Williams and all other persons.”
The court charged upon murder of the first and second degrees and manslaughter, and submitted this, and only this, charge upon the subject of self-defense: “Homicide is permitted by law when inflicted for the purpose of preventing the offenses of murder, rape, robbery, maiming, disfiguration, castration, arson, burglary and theft at night; but in such case it must reasonably appear by the acts, or words coupled with threats of the person killed, that it was the purpose and intent of such person to commit one of the offenses named.”
Considered in the light of the facts in this case, this is a most remarkable charge.
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Hurt J.
George Hackett was tried and convicted for murder of the first degree, and his punishment assessed at death.
We will consider the assignments of error in the order presented in the brief of the appellant, except those relating to the charge of the court, which will be considered last. The first error assigned relates to the overruling of the defendant’s application for a continuance. In regard to this matter, there was no error of which the defendant can complain, the witness Bettie Boulding being present in court before the evidence was concluded.
The seventh assignment of error is, that “the court erred in overruling the defendant’s motion for new trial; 1, on acount of newly discovered evidence; 2, in that the court allowed the State to introduce Bettie Boulding on the stand, in the face of the written agreement to read the statement of what her testimony would be.”
With regard to the last ground in this assignment, we are informed by the record that the defendant had not been served with a copy of the venire facias, and that the cause was about to be postponed, when a written agreement was entered into by the defendant and the county attorney to the effect that the defendant would announce with the right to read to the jury, as [412]*412evidence, the testimony of Bettie Boulding as set forth in the defendant’s motion for continuance.
There was nothing in this agreement which inhibited the county attorney from introducing the witness, if her presence could be had. Certainly the defendant could not be heard to complain of the introduction of a witness who, according to his oath, would swear to such a perfect defense to the charge pending against him. If this motion for continuance was made in good faith, the introduction of this witness would have been heard with perfect satisfaction. We are of the opinion that, notwithstanding the agreement, the county attorney had the right to introduce and examine the witness Bettie Boulding. This, however, was not allowed when the defendant objected.
Counsel for the defendant assigns as error the charge of the court which relates to the evidence of this witness. The charge was, in substance, that the written statement contained in the motion for continuance should be received and given the same weight, and no more, as if she had been on the witness stand. Counsel insists that the rule stated in Skaro v. The State, 43 Texas, 88, is in point. The rule there stated is “that an admission that a witness, on account of whose absence a continuance is asked, would swear, if present, as stated in the affidavit for continuance, will not defeát the application.” If the defendant in the case in hand had been legally entitled to a continuance, the above rule would apply; but, as he was not injured in this matter (the witness Bettie Boulding appearing in time to be used as a witness), the rule has no application whatever.
We will now consider the charge of the court, in which we think there is error. In the twelfth subdivision of the charge the court instructed the jury as follows:
“ It is for the jury to determine the facts from the evidence before them, and applying the facts thus ascertained to the law as above given you, it will be your duty to deduce the guilt or. innocence of the defendant,” etc.
Deduce the innocence of the defendant! Mr. Webster says that “deduce” means “to derive by logical process; to obtain or arrive at as the result of reasoning; to infer.” Reasoning is nothing but the faculty of deducing unknown truths from principles already known.
To justify an acquittal, must the innocence of the defendant be deduced, reasoned out, or inferred, by applying the facts ascertained to the law as given by the court?
[413]*413It is well settled in criminal law that the jury need not believe the defendant innocent in order to acquit. The State asserts an affirmative proposition, which is the guilt of the defendant, and the jury must acquit by finding not guilty unless the State establishes this proposition beyond a reasonable doubt. If the jury are required to deduce the guilt or innocence of the defendant from the law and evidence (under a rule of criminal law), they would be placed in a very perplexing and inconsistent condition. The rule of criminal law referred to requires the jury to believe from the law and evidence that the party is guilty beyond a reasonable doubt, before they will be warranted in law to convict. The jury may believe him guilty; this belief will not suffice unless from the law and evidence they are satisfied of his guilt beyond a reasonable doubt; and if not so satisfied they, under the law, must acquit by finding him not guilty. They are not required to believe him innocent. The verdict of not guilty is simply, in effect, to deny that the State has established the affirmative proposition, which is the guilt of the defendant, beyond a reasonable doubt; and is not a declaration of innocence. The jurors may believe him guilty, but can not, because of doubt, convict. Under this charge they can not acquit because they believe him guilty. They have deduced his guilt, but not beyond a reasonable doubt, hence can not convict. They have not deduced his innocence; hence under this charge they can not acquit.
We are of the opinion that this charge is erroneous, and is in direct conflict with the rule that the person is presumed innocent until his guilt is established beyond a reasonable doubt.
We are of the opinion that the law was not applied to the theory of the case presented by the evidence of the witness Bettie Boulding. The facts expected to be proved by this witness, as found in the motion for continuance and by agreement read to the jury, are as follows: “That she was present at the time of the difficulty. That Major Williams struck the defendant in the house without any provocation whatever, and also drew an open knife on the defendant and tried to cut him with the knife; and that the defendant, to keep Williams from cutting him, ran out of the house; and that Williams immediately followed the defendant out of the house into the yard with an open knife in his hand, and was trying to cut the defendant with the knife; and that two or three persons were assisting Williams in his efforts to get to defendant with the knife; that Williams was [414]*414mad and cursing the defendant; that, while Williams was pursuing and cursing the defendant, and so being assisted by other persons in the yard, the defendant struck with his knife in his own necessary self-defense. That the defendant was all the time, from the beginning to the ending of the difficulty, at the time and place acting in his necessary self-defense, and was all the time trying to prevent a difficulty and to avoid any collision with Williams and all other persons.”
The court charged upon murder of the first and second degrees and manslaughter, and submitted this, and only this, charge upon the subject of self-defense: “Homicide is permitted by law when inflicted for the purpose of preventing the offenses of murder, rape, robbery, maiming, disfiguration, castration, arson, burglary and theft at night; but in such case it must reasonably appear by the acts, or words coupled with threats of the person killed, that it was the purpose and intent of such person to commit one of the offenses named.”
Considered in the light of the facts in this case, this is a most remarkable charge. What had robbery, maiming, theft at night, or castration to do with this case? The deceased was killed at a social gathering. There was no attempt to rob, rape, maim or castrate any person.
There is another serious objection to this charge. It requires the words to be coupled with threats in order for it to reasonably appear that it was the purpose and intent of the party killed to commit one of the offenses. The purpose may appear with threats if the words are coupled with the acts of the party killed. But suppose that the above charge was perfectly unobjectionable in every particular, it would simply announce an abstract proposition of law. There is no attempt to apply the law to that theory of the case which is presented by the evidence of Bettie Boulding. The rule upon this subject is, that instructions should not be presented in the form of abstract propositions, but should be constructed upon the.evidence in the particular case at bar. A state of facts should be supposed which accords with the evidence; then deduce the legal conclusions applicable to such state of facts. (Burrell v. The State, 18 Texas, 713; O’Connell v. The State, 18 Texas, 343.) This rule applies not only to the case as made by the evidence, but to every phase which has any support in any part of the evidence.
We are of the opinion that the court should have applied the law directly and affirmatively to the theory of the case made [415]*415by the evidence of the witness Bettie Boulding. We also suggest the propriety of instructing the jury upon the subject of cooling time, in view of the evidence of some of the witnesses for the defendant.
The other assignments will not be discussed, as the case will probably be divested of these questions on another trial.
For the errors in the charge the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered February 3, 1883.