We deem it unnecessary to notice specially
the several propositions involved in the assignment of errors. The first material error we find in the record deserving of notice is the exclusion of the evidence of Alexander de la Garza. The testimony of this witness, as set out in a bill of exceptions in the transcript, taken at the trial, to the ruling of the court, was admissible and should have gone to the jury for what it was worth.
Secondly, the charge of the court on the subject of implied malice, as applied to murder in the second degree, is indefinite, and wanting in that clearness necessary tó the proper understanding and application of the term. Other portions of the charge are objectionable in that they trench on the province of the jury to determine what has been proved by the witnesses, and are calculated to confuse the jury.
The following charge is incorrect in the latter portion:
“You are instructed that the prisoner is presumed to be innocent until his guilt is established by competent evidence; after the guilt of a prisoner, for crime, is established by such evidence, then such presumption of innocence no longer pertains.”
The law is that “ a defendant in a criminal cause is presumed to be innocent until his guilt is established by legal evidence, and, in case of reasonable doubt as to his guilt, he is entitled to be acquitted” (Pasc. Dig., Art. 3105), and the jury should so have been instructed.
It is the duty of the judge, in felony trials, to instruct the jury in writing, in which he shall distinctly set forth the law *739applicable to the case. It is not allowed a judge to discuss the facts. It is his duty to state plainly the law of the case. Pasc. Dig., Arts. 3059, 3060.
We see no error in refusing the charge asked by the defendant, and agree with the judge that ‘1 there was no evidence to warrant it.”
These errors were saved by proper bills of exception, and enter into the motion for new trial and in the assignment of errors.
The judge should have admitted the testimony of Alexander de la Garza (Stokes v. The People, 53 N. Y., cited in Cases of Self-Defense, 927; Horbach v. The State, 43 Texas, 242), and should have sustained the defendant’s motion for new trial; and for these reasons the judgment rendered in this cause in the district court is reversed and the cause remanded.
Reversed and remanded.