ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.Appellant’s motion for rehearing is predicated on the contention that this court erred in holding that the trial court’s instruction discussed in our original opinion, while erroneous, was harmless.
*101A further consideration of the question convinces us that appellant is right in his position.
The charge of the court must conform to, and be limited by, the allegations of the indictment, and also by the evidence. A charge presenting a defense or an issue not raised by the evidence should not be given, and a charge which is given in the abstract and is not applicable to the evidence should be omitted. The foregoing general principles, among others, will be found stated in note number eleven under Art. 658, Vernon’s C. C. P.
Art. 490 P. C. defines the offense of bigamy. Art. 491 P. C. reads as follows:
“The preceding article does not apply to one whose husband or wife shall have been continually remaining out of the State or shall have voluntarily withdrawn from the other and remained absent for five years, the one marrying again not knowing the other to be living within that time, nor to any one who has been legally divorced.”
Appellant did not testify and offered no defensive testimony through any witness. There was no evidence that appellant’s first wife was out of the State or had remained out of the State for five years, or that she had “withdrawn from the other and remained absent for five years,” nor that appellant and his first wife had been divorced.
The court properly charged the jury that if they believed from the evidence beyond a reasonable doubt that appellant had married the second wife (naming her) and that at the time of such marriage he was lawfully married to a former wife (naming her) who was then living, to find appellant guilty. Here the instructions should have stopped, with the exception of the presumption of innocence and reasonable doubt. Immediately following this instruction the trial court gave the charge set out in our original opinion. Appellant filed written objections to such charge, as follows: “* * * because this instruction places the burden of proof upon the defendant; because this is calling attention to the jury that defendant has failed to produce evidence on his possible defenses; because same is a comment on the evidence; because same is a comment on the defendant’s failure to testify; because same singling out evidence and a comment on his failure to produce same and because the same is giving an abstract proposition of law on matters that are not in issue and because same is an attempt by the court to tell *102.the jury that the State is not required to disprove defendant’s defenses, and is an attempt by the court to present the State’s theory of the case without any evidence to support same.”
It is the absolute province of the jury to determine the weight of the State’s testimony, and whether they think an accused has been proven guilty. Any instruction which tells the jury they should convict, thereby withdrawing from them their exclusive right to pass upon the facts would be error; or any instruction from which the jury might conclude that such was the meaning of the court would be error and harmful. If the trial court was attempting to apply the provisions of Art. 491 P. C. in the charge under consideration it fell far short of accomplishing that purpose. In the first place, it was purely the statement of an abstract proposition which was not the law; it made no effort to apply it to any issue in the case, and indeed, could not have made such application because there was no evidence raising any such issue. The result was that the jury was left free to make such application of the instruction as they thought proper. That under the circumstances here present the instruction was confusing to the jury and hurtful to appellant is highly probable. It would not have been unnatural for the jury to have understood the instruction to mean that if appellant had not proven the supposed defensive matters mentioned in the charge they should convict.
We do not consider further the probable effect of said erroneous charge, but refer to the following cases for discussion of the principle involved. Mattison v. State, 54 Tex. Cr. R. 514, 114 S. W. 824; Stephenson v. State, 148 Tex. Cr. R. 287, 186 S.W. (2d) 685; Ratliff v. State, 114 Tex. Cr. R. 142, 25 S. W. (2d) 343; Carson v. State, 48 Tex. Cr. R. 157, 86 S. W. 1011; Reed v. State, 113 Tex. Cr. R. 366, 21 S. W. (2d) 684.
Having reached the conclusion that we were not justified in holding that the complained of charge was harmless, appellant’s motion for rehearing is granted and the judgment of conviction is now reversed and the cause remanded.