At a previous term of this court the judgment herein was reversed, and the State makes a motion for rehearing. The transcript as heretofore held in the opinion omitted to contain the complaint, the information alone being set up. This defect has been supplied showing that it was an omission of the clerk *Page 113 in transcribing the record. Several matters are urged for consideration in the State's motion. After reviewing these we are of opinion the judgment should be reversed. Some of the grounds urged for reversal were not discussed in the original opinion, but simply referred to as reversible errors — the giving of charges by the court and refusal of special instructions requested by appellant. One or more of these facts is deemed proper now to notice. Without restating the facts, we think the original opinion has sufficiently shown the substance of the evidence to review these questions. The court charged the jury, among other things, as follows: "You are also charged that to constitute an infraction of this particular statute, the intention to violate the law is an essential ingredient but the burden of proof is on the defendant and not the State. If, therefore, you do not believe from the evidence that it was the intention of the defendant to violate the law, you will acquit him. The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case you have a reasonable doubt as to defendant's guilt, you will acquit him." Exception was reserved to these charges because contradictory one of the other; second, same places burden of proof on the defendant to show an innocent intent when the intent is charged to be an essential ingredient in the offense. These exceptions are well taken. It is a correct proposition made so by the statute that the party is presumed innocent until his guilt is established beyond a reasonable doubt, and if there is a doubt the accused should be acquitted, but it is not the law that where the intent is an essential ingredient of the law under this statute that the burden of proof is on the accused to show his innocence or his innocent intent. The burden of proof is always on the State unless in peculiar cases such as non-age, insanity, etc. This statute, however, does not come within the purview of these exceptions. In Lann v. State, 25 Texas Crim. App., 495, it is held the intent was a necessary element of the offense of which appellant was convicted. See also Brooks v. State, 15 Texas Crim. App., 88. This is the recognized doctrine with reference to this statute. That being true, or the correct principle, then the burden of proof is upon the State and not upon the defendant. Therefore, the court erred in charging this rule with reference to intent and it is directly contradictory of the presumption of innocence.
Appellant asked special instruction covering this phase of the case, pertinently and directly, which was refused, and proper exceptions taken both to the charge given and the refusal of the special requested instruction. This instruction was asked by appellant, and refused, and we think erroneously: "If the jury believe from the evidence that the pistol charged to have been carried by the defendant was the property of Joe Eustace, and he put the same into the buggy and carried it to Rogers' ranch, and that the defendant at request of Eustace put the pistol in the bar at Rogers' ranch for safe keeping, and put it *Page 114 back in the buggy, and there was no intent on the part of defendant in so handling the pistol to violate the law, then the jury should acquit the defendant." Also the court erred in refusing the following requested instructions: "If you believe from the evidence that the defendant Otto Schroeder, upon reaching the grounds where the social gathering was had, immediately divested himself of the possession of said pistol, and that he did not carry on or about his person said pistol while at said social gathering, then you will acquit the defendant." In this immediate connection the facts show that appellant and Eustace went from Lockhart to the social gathering about ten or twelve miles, and that Eustace, upon leaving the town of Lockhart, placed his pistol in the back of the buggy and under the buggy seat; that upon reaching the grounds they got out and hitched the team about twenty-five or thirty steps from the house where the dancing was in progress. Eustace requested appellant, as he was a member of the Turnverein society, and knew all the environments and people, and had some right on the premises, to take his (Eustace's) pistol and put it away for him until they were prepared to return home, expressing fear of its being stolen. Appellant agreed to do this, and took the pistol into the bar-room, which is described in the original opinion, and deposited it where it remained until about 1 or 2 o'clock in the morning, when, upon their returning home, appellant went into this bar, got the pistol and placed it back in the buggy. This was appellant's entire connection with the transaction. We believe that under this state of facts the charges requested should have been given. See Sanderson v. State, 23 Texas Crim. App., 520; Cathey v. State, 23 Texas Crim. App., 492; Brooks v. State, 15 Texas Crim. App., 88; Lann v. State, 25 Texas Crim. App., 495; Jones v. State, 13 Texas Crim. App., 1, and Hardy v. State, 37 Tex.Crim. Rep.. Under the view that we take of this record, we are of opinion that the motion for rehearing should be overruled, and it is accordingly so held. The facts are not discussed, nor their sufficiency passed on in this opinion.
Overruled.