Ogden, J.
On the 30th day of July, 1872, the appellants were tried before the Criminal Court for Galveston county, for the murder of Green Butler, and were convicted. Their motion for a new trial was overruled, and they have appealed and have assigned several errors for the reversal of the judg[385]*385ment, which refer more directly to the charge of the court, and the conduct of the jurors during the progress of the trial
We do not propose to notice the assignments in their numerical order, but only such questions as are considered material to the proper disposition of the case now before us. Appellants complain that the charge of the court is in disregard of the statute which says, the court “ shall in no case, civil or e< criminal, charge or comment on the weight of evidence.”' It is very proper and right for the court, where the facts of a case require a knowledge on the part of the jury of the different classes or kinds of evidence as recognized by legal authority, to clearly point out, in general terms in the charge, the distinguishing characteristic of those different kinds, and the credit which, under ordinary circumstances, may be placed upon evidence of either class. Thus, we think the court, under the statute, fully authorized to explain to the jury the difference between primary, secondary, hearsay, and presumptive evidence, and the relative amount of conviction each class should, under ordinary circumstances, produce upon the mind. But it is believed that, under our statute, the court would not, as a general rule, be authorized to refer the minds of the jury to any particular evidence adduced upon the trial of a case, and then characterize it as the highest, or lowest, or any other degree of evidence. It is the province and duty of the court to determine what evidence shall be admitted to the jurybut when once admitted as legitimate testimony,, it is then the exclusive right and privilege of the jury to. determine the weight it shall have in the formation of their verdict.. And when the court, by inadvertency or otherwise,, has, in the charge to the jury, placed greater stress or weight upon one portion of the testimony legitimately before them, than another, it trenches upon the province of the jury and the positive requirements of the statute.
The court charged the jury that the declarations of a dying man have from time immemorial been conceded to be evidence of facts, upon the ground that “ his statements are worthy of [386]*386“ more credence, under such circumstances, than if made under “ the sanctity of an oath, duly administered according to law.” And after stating the rules which determine the admissibility of dying declarations, the court further charges the jury : “ If “ these facts appear from the evidence, under the foregoing “ rules of law, it becomes the highest testimony known, and “ must receive full faith and credit by the jury.” We think this clause of the charge clearly erroneous, for two reasons. It is a direct and special charge and comment upon the weight of evidence, which is positively prohibited by the statute (Paschal’s Digest, 1464 and 3069), and, under the testimony adduced on the trial, left the jury no alternative but to find at least one of the" defendants guilty. The declarations of the deceased were clearly proven by several witnesses, who were wholly uncontradicted, and the charge makes those declarations the highest testimony known, and therefore absolutely conclusive. There could be no allowance for a possible mistake in the deceased; no consideration of the probability that, in the very article of death, he might have been bereft of reason or memory; and no doubt that the witnesses who repeated his last words did so with absolute precision and truthfulness.
We think the charges here cited are clearly erroneous, because they raise hearsay evidence to the highest testimony known. This is in conflict with the clearly enunciated rule laid down by every writer on evidence to which we have bad access, and contrary to the reason for the admission of proof to establish any fact. Dying declarations are admitted as evidence under an exception to the general rule, which is founded upon public necessity, and not because they are more worthy of credence than other testimony. They are admitted under restrictions, and when so ádmitted, they are raised to the character of other ■evidence, which may, or may not, have great weight, according to the circumstances under which they were made; and it is for the jury, and not the court, to judge of those circumstances, .and the credence to be given to those declarations.
Mr. Greenleaf says, it is the province of the judge to deter[387]*387mine whether those declarations are admissible, “ bnt, after the “ evidence is admitted, its credibility is entirely within the “ province of the jury, who, of course, are at liberty to weigh all “ the circumstances under which the declarations were made, “ and to give the testimony only such credit as upon the whole “ they may think it deserves.” (Greenleaf’s Evidence, Vol. I., 185. See also Lambeth v. The State, 1 Cushman, 23; Starkie on Evidence, 462.) These authorities .lay down a different rule from the one enunciated in the charge of the court, and one which we feel called upon to follow, in deciding that the court erred in its charge to the jury. We are also of the opinion that the erroneous charge here noticed was well calculated to mislead the jury, and may have done so ; and that the appellants are therefore entitled to another trial by a jury properly instructed by the court.
We do not think the charge given at the request of appellants’ counsel can be considered as correcting the erroneous charge already given, as the one charge contradicts the other, and in any event tended to confuse the jury. We think the appellants entitled to a definite, clear, and harmonious charge of the law, applicable to the facts as proven on the trial; and failing to get such a charge, we think they had a right to complain.
Appellants also complain of that portion of the charge of the court which informed the jury, that “ an alibi is a species “ of defense often set up in criminal cases, and one which seems “ to figure somewhat in this.” It is believed that this portion of the learned judge’s charge, as well as others heretofore referred to, were the result of haste and excitement, which almost always attend trials for offenses of so grave a character as the one now under consideration. But it is the duty of the appellate court to act with more deliberation, and correct such errors whenever they may occur. The peculiar language of the charge in regard to the defense of aq alibi is well calculated to convey to the minds of the jury the impression that the court regarded that particular defense as a pretense without [388]*388much foundation in truth. While it is true that the defense of an alibi is often set up without the foundation of truth, and as a pretext to shield the guilty where no other defense could be claimed.; but, says Bouvier, “if it appears to be founded in “ truth, it is the best negative evidence that can be offered; it “ is really positive evidence which, in the nature of things, “ implies a negative, and in many cases it is the only evidence “
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Ogden, J.
On the 30th day of July, 1872, the appellants were tried before the Criminal Court for Galveston county, for the murder of Green Butler, and were convicted. Their motion for a new trial was overruled, and they have appealed and have assigned several errors for the reversal of the judg[385]*385ment, which refer more directly to the charge of the court, and the conduct of the jurors during the progress of the trial
We do not propose to notice the assignments in their numerical order, but only such questions as are considered material to the proper disposition of the case now before us. Appellants complain that the charge of the court is in disregard of the statute which says, the court “ shall in no case, civil or e< criminal, charge or comment on the weight of evidence.”' It is very proper and right for the court, where the facts of a case require a knowledge on the part of the jury of the different classes or kinds of evidence as recognized by legal authority, to clearly point out, in general terms in the charge, the distinguishing characteristic of those different kinds, and the credit which, under ordinary circumstances, may be placed upon evidence of either class. Thus, we think the court, under the statute, fully authorized to explain to the jury the difference between primary, secondary, hearsay, and presumptive evidence, and the relative amount of conviction each class should, under ordinary circumstances, produce upon the mind. But it is believed that, under our statute, the court would not, as a general rule, be authorized to refer the minds of the jury to any particular evidence adduced upon the trial of a case, and then characterize it as the highest, or lowest, or any other degree of evidence. It is the province and duty of the court to determine what evidence shall be admitted to the jurybut when once admitted as legitimate testimony,, it is then the exclusive right and privilege of the jury to. determine the weight it shall have in the formation of their verdict.. And when the court, by inadvertency or otherwise,, has, in the charge to the jury, placed greater stress or weight upon one portion of the testimony legitimately before them, than another, it trenches upon the province of the jury and the positive requirements of the statute.
The court charged the jury that the declarations of a dying man have from time immemorial been conceded to be evidence of facts, upon the ground that “ his statements are worthy of [386]*386“ more credence, under such circumstances, than if made under “ the sanctity of an oath, duly administered according to law.” And after stating the rules which determine the admissibility of dying declarations, the court further charges the jury : “ If “ these facts appear from the evidence, under the foregoing “ rules of law, it becomes the highest testimony known, and “ must receive full faith and credit by the jury.” We think this clause of the charge clearly erroneous, for two reasons. It is a direct and special charge and comment upon the weight of evidence, which is positively prohibited by the statute (Paschal’s Digest, 1464 and 3069), and, under the testimony adduced on the trial, left the jury no alternative but to find at least one of the" defendants guilty. The declarations of the deceased were clearly proven by several witnesses, who were wholly uncontradicted, and the charge makes those declarations the highest testimony known, and therefore absolutely conclusive. There could be no allowance for a possible mistake in the deceased; no consideration of the probability that, in the very article of death, he might have been bereft of reason or memory; and no doubt that the witnesses who repeated his last words did so with absolute precision and truthfulness.
We think the charges here cited are clearly erroneous, because they raise hearsay evidence to the highest testimony known. This is in conflict with the clearly enunciated rule laid down by every writer on evidence to which we have bad access, and contrary to the reason for the admission of proof to establish any fact. Dying declarations are admitted as evidence under an exception to the general rule, which is founded upon public necessity, and not because they are more worthy of credence than other testimony. They are admitted under restrictions, and when so ádmitted, they are raised to the character of other ■evidence, which may, or may not, have great weight, according to the circumstances under which they were made; and it is for the jury, and not the court, to judge of those circumstances, .and the credence to be given to those declarations.
Mr. Greenleaf says, it is the province of the judge to deter[387]*387mine whether those declarations are admissible, “ bnt, after the “ evidence is admitted, its credibility is entirely within the “ province of the jury, who, of course, are at liberty to weigh all “ the circumstances under which the declarations were made, “ and to give the testimony only such credit as upon the whole “ they may think it deserves.” (Greenleaf’s Evidence, Vol. I., 185. See also Lambeth v. The State, 1 Cushman, 23; Starkie on Evidence, 462.) These authorities .lay down a different rule from the one enunciated in the charge of the court, and one which we feel called upon to follow, in deciding that the court erred in its charge to the jury. We are also of the opinion that the erroneous charge here noticed was well calculated to mislead the jury, and may have done so ; and that the appellants are therefore entitled to another trial by a jury properly instructed by the court.
We do not think the charge given at the request of appellants’ counsel can be considered as correcting the erroneous charge already given, as the one charge contradicts the other, and in any event tended to confuse the jury. We think the appellants entitled to a definite, clear, and harmonious charge of the law, applicable to the facts as proven on the trial; and failing to get such a charge, we think they had a right to complain.
Appellants also complain of that portion of the charge of the court which informed the jury, that “ an alibi is a species “ of defense often set up in criminal cases, and one which seems “ to figure somewhat in this.” It is believed that this portion of the learned judge’s charge, as well as others heretofore referred to, were the result of haste and excitement, which almost always attend trials for offenses of so grave a character as the one now under consideration. But it is the duty of the appellate court to act with more deliberation, and correct such errors whenever they may occur. The peculiar language of the charge in regard to the defense of aq alibi is well calculated to convey to the minds of the jury the impression that the court regarded that particular defense as a pretense without [388]*388much foundation in truth. While it is true that the defense of an alibi is often set up without the foundation of truth, and as a pretext to shield the guilty where no other defense could be claimed.; but, says Bouvier, “if it appears to be founded in “ truth, it is the best negative evidence that can be offered; it “ is really positive evidence which, in the nature of things, “ implies a negative, and in many cases it is the only evidence “ which an innocent man can offer.” We think that whenever this defense is set up to an accusation, and especially to so grave a charge as the one of which the appellants are accused, it demands a patient, careful, but scrutinizing examination by both court and jury. But we are clearly of the opinion that, when a defense of this character is attempted to be set up, it devolves upon the defendant to prove that defense to the satisfaction of the jury, if he expects to be benefited thereby. When the prosecution has made out a case of guilt beyond a reasonable doubt, the burden of proof is then changed, and it devolves upon the defendant to establish his innocence by proof.
We are further of the opinion, that the affidavits filed in this case show, beyond controversy, that the jury were permitted to violate the positive injunction of the law, “ that they shall “not separate during the trial, unless by permission of the “ court, with the consent of the district attorney and defend- “ ant, and in charge of an officer.” (Paschal’s Digest, 3070.) The wisdom of a law like ours, to preserve the purity of trials by jury, is fully acknowledged and appreciated by every person who has given the subject any mature deliberation. The liability of jurors to improper influence, when vital interests are committed to their decision, renders a law of the character referred to, absolutely imperative. But our statute declares that a jury shall not separate during a trial, excepting under certain restrictions, and if they violate the law in that respect, their verdicts should not be regarded by the court as an unbiased and honest verdict, entitled to respect and support. The law not only prohibits the separation of the jury on the [389]*389trial of a felony, but it also prohibits any communications with the jury after they have been impanneled to try a criminal action, excepting in the presence and by the permission of the court. It is then the duty of the court to see that the jurors are not tampered with, or attempted to be influenced by any person, excepting in the manner pointed out by law. The suffering jurors to have, during the progress of the trial, daily access to newspapers containing imperfect or incorrect accounts of the trial being had before them, together with comments upon the person and characters of those connected with the trial, was certainly erroneous and improper, and of itself sufficient to vitiate the verdict rendered by them. For the reasons given, the judgment is reversed, and the cause remanded.
Reversed and remanded.