The judgment in this case must be reversed for error committed by the court in the following portion or paragraph of the charge given to the jury, to wit: “If you believe, from the evidence, that facts and circumstances have been proved by the state sufficient to satisfy your minds beyond a reasonable doubt that the offense was committed as charged in the bill of indictment, and that the defendants on trial were present and in any manner participated in the killing and skinning the said cow, then it devolves upon the defendants to show such facts or circum*729stances which tend to excuse or justify the act, or which show their guilty intention, unless the facts or circumstances which go to excuse, justify, or extenuate the act grew out of the evidence adduced by the state.”
This charge is defective and erroneous in two respects. 1st. It makes the guilt of the defendants depend upon the simple fact that they were present and in any manner participated in the killing or skinning of the cow, when the law only imputes guilt upon condition that they participated knowing the unlawful intent of the party who was aided, assisted, or encouraged by them. Pase. Dig., Art. 1810. 2d. The jury are told that the burden of proof is cast upon defendants to show excuse and justification if the facts show that the defendants were present and in any manner participated in the killing or skinning of the cow. This is not the law. Every defendant in a criminal cause is presumed to be innocent, under our law, until his guilt is established, by legal evidence, beyond a reasonable doubt. Pase. Dig., Art. 3105. The burden of proof is upon the state, in cases of theft, at all times; and until it adduces proof sufficient to satisfy the minds of the jury to a moral certainty, beyond a reasonable doubt, that the accused is guilty, it is their duty to acquit. Ring v. The State, 42 Texas, 282.
The charge, as quoted, is furthermore unintelligible in so far as it uses the words, “or which show their guilty intention.”
Because the charge was not the law, and was calculated to mislead the jury, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.