¶1 on rehearing.
¶2 April 7, 1910.
¶3 Appellant presents but one question in his motion for rehearing. That is, he contends that paragraph 10 of the court’s charge, quoted in the original opinion, is on the weight of the evidence, which entitles him to.a reversal. He presents the question from his viewpoint in an unusually clear and forcible way.
¶4 Among other cases he cites Stephens v. State, 10 Texas Crim. App., 120; Owens v. State, 39 Texas Crim. Rep., 391, claiming the first is peculiarly parallel to this case. Besides these, he cites other cases on the general proposition that where a charge is upon the weight of the evidence, it is error.
¶5 We have carefully considered these cases and the question again and are still of the opinion that while said charge Ho. 10 should not have been given, giving it does not present reversible error.
¶6 At the time,—in 1881—when the Stephens case was decided, our statute (art. 735, C. C. P.) prescribed: . . . “The judge shall deliver to the jury a written charge in which he shall distinctly set forth the law applicable to the case; but he shall not express any opinion as to the weight of the evidence. ...”
¶7 Article 736 was: “It is beyond the province of a judge, ... to discuss the facts or use any argument in a charge calculated to rouse the sympathy or excite the passion of a jury. It is his duty to state plainly the law of the case.” Both of these articles, in the respects quoted, are.precisely the same now as they were then.
¶8 Article 743 then was as follows:. “Whenever it' appears . . . that any of the requirements in the eight preceding articles have been disregarded, the judgment shall be reversed; provided, the error is excepted to at the time of the trial.”
¶9 The language and substance of that article as it now is, is the reverse practically of what it then was, for it now is, that whenever either or both of said articles 735 and 736, “have been disregarded, the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant had not had a fair and impartial trial,” and objection must also now be made at the time of the trial like the original article required.
¶10 So that as the statute stood when the Stephens case was decided, it said “the judgment shall be reversed.” It now says, it “shall not be reversed, unless,” etc. At first, when the said article 743, as it was before 1897, this court in several cases (Surrell v. State, 29 Texas Crim. *437 App., 321; White v. State, 28 Texas Crim. App., 71; Jenkins v. State, 28 Texas Crim. App., 86, and Habel v. State, 28 Texas Crim. App., 71, and others) held that where said articles 735-736 or either had been disregarded if timely excepted to this court had to reverse, notwithstanding the disregarding of said articles by the judge’s charge was harmless to appellant or in his favor. Soon after the amendment of said article 743, by the Act of March 12, 1897, was made, this court disapproved the doctrine held in said cases and specifically held in Green v. State, 32 Texas Crim. Rep., 298, that where said articles 735-736, or either, had been disregarded, but the error by the court was harmless, or inured to the benefit of the accused, although excepted to, no reversible error was -presented. Since then this court has uniformly so held in many decisions unnecessary to collate. We cited and quoted Judge White on this subject in the original opinion.
¶11 The inhibition of article 735 is, the “judge shall not express any opinion as to the weight of the evidence.” And by article 736 he is inhibited “to discuss the facts or use any argument in his charge calculated to rouse the sympathy or excite the passion of the jury.” Appellant does not contend that the judge by giving charge Ho. 10, violated article 736, and he does not claim that the judge by that charge discussed the facts or used any argument in his charge calculated to rouse the sympathy or excite the passion of the jury. But he does claim that he violated article 735 in that he claims said charge “as framed, is upon the weight of the evidence.” He did not “distinctly specify,” as the statute requires, how or wherein it was “upon the weight of the evidence.” How then, what did he tell the jury by this charge? He told them: “T.f you believe (not that he believed or disbelieved) from the evidence that the witness William Van Burén did not see defendant on the inside of his, Van Buren’s, house at the time of the commission of the alleged offense as testified to by said Van Burén, or if you have a reasonable doubt thereof, etc.” By this charge he neither expressly nor by implication told the jury that he believed said Van Buren’s testimony on this point. He left that exclusively for the jury. We think by no reasonable implication could the jury conclude that the judge believed Van Burén when he so testified. On the contrary, by implication the mere submission of the question to the jury would imply to them that he, the judge, did not believe Van Burén when he so testified. If the jury understood the judge to imply anything, it was that he, the judge, doubted the truthfulness of Van Buren’s testimony on this point; otherwise he would not, in any contingency, have given them a charge on circumstantial evidence. Suppose he had said to the jury in express language: “I believe Van Burén is mistaken or testified falsely when he said appellant was in his house at the time he was robbed, but leave the question for you to decide.” Clearly that would have been expressing his opinion of the testimony, but in appellant’s favor and not against Mm. In effect that is what he did tell the jury. This would give ■ the State cause to complain, but not appellant.
¶12*438 But let us consider the Stephens case, supra, which appellant claims is so directly in point in his iavor. In that case the purported confessions were testified to by a witness whose character and reputation for truth and veracity were assailed by two witnesses and other facts; the judge charged:
¶13 “The confessions of the defendant are in evidence before you, and if in your best judgment you shall give no credit to the witness who professed to detail them, you will then look to the other testimony in the case and apply it to the rules relating to circumstantial testimony.” If the judge in his charge had stopped there, Judge White doubtless would have held that no error was committed, but he did not stop there. He went further and said as a continuation of the question just above: “If you give credence to the witness who professed to detail the confessions, you need not apply to the evidence those rules as to circumstantial testimony.” It is this latter part which in that case resulted in reversal, Judge White stating specifically the reasons, as follows: “It was in effect, if not in fact, tantamount to telling the jury ‘if you believe the testimony of the witness who has testified to defendant’s' confession, then you will not loolc to or consider the other evidence in the case/ This was, in the contingency mentioned, depriving the defendant of the benefit of any testimony offered by him, by requiring the jury not to looh to or consider it.”
¶14 In this case the court did not charge this latter part or anything like it, but instead: “If you believe from the evidence that the witness Van Burén did not see defendant, Will Terrell, on the inside of his (Van Buren’s) house at the time of the commission of the alleged offense, as testified to by said Van Burén, or if you have a reasonable doubt of it, then you are charged that the State would rely and depend wholly upon circumstantial evidence to convict the defendant, and in this connection you are charged,” then proceeded to give them a correct charge on circumstantial testimony. The judge in this case did not, as the judge in the Stephens case did, tell the jury that if they believed Van Burén they need not apply to the evidence the rules as to circumstantial testimony, which makes quite a different thing. If the judge in this case had told the jury as Judge White said was done in the Stephens case, “If you believe the testimony of Van Burén, when he testified he saw Will Terrell in his house, when he was robbed, then you will not look to nor consider the other evidence in the case,” then this case would have been parallel to the Stephens case.
¶15 A careful analysis of the Owens case, supra, will show that there is an equally as marked difference between that and this case than we have shown exists between this and the Stephens case.
¶16 Besides, it is elementary that the whole charge is to be considered when any particular paragraph of it is attacked. (Christian v. State, 71 Texas Crim. Rep., 566, 161 S. W. Rep., 101.)
¶17 How the judge in this case correctly told the jury the law of robbery, and required the jury “to believe from the evidence (which means all the evidence) beyond a reasonable doubt” every essential fact necessary *439 to show that appellant was guilty of the offense charged in this case before they were authorized to convict and only when they so believed this from all the evidence, could they convict him. In addition, he charged alibi in appellant’s favor. Further, that the burden of proof was upon the State; that the defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and in case <ryou have a reasonable doubt as to his guilt, you will acquit him,” and further told them they were the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to their testimony. So that we still think charge Ho. 10 was not upon the weight of the evidence, but if so, that it was upon it in appellant’s favor and not against him; and, further, that in no event does it present reversible error taken in connection with the whole charge of ihe court. The motion is overruled.
¶18 Overruled.