The errors assigned are:
“ 1st. The court erred in overruling defendant’s application for a continuance.
“ 2d. The court erred in the various rulings objected to, as shown by bills of exception, Nos. 1, 2, 3, 4, and 5 of the record herein.
“ 3d. The court erred in charges 4 and 5 given to the jury.
“ 5th. The court erred in refusing charges asked by defendant.”
We believe that the defendant’s application for a continuance was in strict compliance with, the requirements of the statute for a first application, and that he was entitled to the continuance as a legal right. So 'far as the record shows, the defendant had never before continued the case.
The prosecution attempted to show that the bay gelding which the defendant is charged in the indictment to have stolen was the property of Henry Hamilton; that it was fraudulently taken by the defendant from its accustomed range, as charged in the indictment, and was afterwards sold by the defendant to the state’s witness, T. D. Laxton.
*181It was improper to admit the statements of the sheriff of Medina county,, not under oath, on the hearing of the application for a continuance, to show that the defendant’s "witnesses named in his affidavit were absent by his procurement.
At common law, when there was reason to suspect that the application of a defendant in a criminal case for a continuance was made for delay, counter-affidavits were admisible to destroy the force of the defendant’s affidavit, by .showing the want of proper diligence, and also the improbability of obtaining the attendance of the witness at the next trial; but this rule at the common law was never so relaxed that the statements of an officer of the court, or anybody else, not under oath, of facts within his knowledge were held admissible to destroy the force of the common affidavit.
If the horse taken up by the defendant belonged to Hamilton, it was certainly material to show that the defendant purchased the animal in good faith from a person whom he believed to be the owner of it. The defendant excepted to the ruling of the court on his motion for a-continuance.
All the cases on the docket preceding the one at bar had been disposed of, or set for trial on some ensuing day of the term, and the defendant had no right to complain at the order in which his case was called for trial. Therefore his 2d bill of exceptions is not well taken.
We find no error committed by the court as complained of by the defendant in his 3d and 4th bills of exception.
In determining whether the court erred in the 4th and 5th charges given to the jury, it is necessary that we shall copy, in connection with them, the 3d instruction also. They are as follows:
“ 3d. If, from the evidence before you, you are are satisfied, beyond a reasonable doubt, that the defendant, Jasper Merritt, did, on or about the time charged in the indictment, or at any time within five years previous to the filing of the *182indictment, to wit, on the 3d day of October, A. D. 1876, fraudulently take from the possession of Henry Hamilton, of from that of some one holding the same for him, the bay-gelding charged in the indictment, and that the same was-the property of Henry Hamilton, without his consent, with intent to deprive him of the value of the same, and to appropriate it to the use or benefit of the said Jasper Merritt, you will find the defendant guilty as charged, and assess the penalty at imprisonment in the penitentiary for a term of not less than five nor more than fifteen years.
“4th. Unless so satisfied of any of the foregoing facts, you will acquit him.
“ 5th. If you are so satisfied from the evidence that the-animal which the defendant was seen with by the witness-Jones, on Cypress creek, was the same which he traded to witness Laxton, near Austin, and, further, that it was the same animal which" Henry Hamilton testifies he hobbled on the Julian, and was lost there, you are at liberty to consider the several statements made by the defendant as to the manner in which he came in possession of it, in order to-enable you to arrive at the guilt or innocence of the defendant ; and, if said statements appear to be reasonable and consistent, it is a circumstance in his favor; but, if the said statements are unreasonable and false, it is a circumstance-against him.”
The district judge who presided at the trial evidently meant, in the 4th instruction, to charge the jury that, "unless-so satisfied of every one of the foregoing facts, you will acquit him.” When we consider the circumstances under-which the district judge prepares his charges, we can well understand how it is that he does not always express himself as clearly as he desires or should do.
The 5th instruction given to the jury is objectionable as being a charge on the weight of evidence. A charge to a jury is perfectly unexceptionable only when the judge con*183fines himself to the duty of setting forth the law applicable to the. case, without expressing or intimating any opinion as to the weight of the evidence, or the credibility of the statements made by the party accused or by the witnesses. Ross v. The State, 29 Taxas, 500.
The able jurist, Chief Justice Roberts, in the case of Brown v. The State, 23 Texas, 201, says: “If the court should undertake to instruct, or even advise, the jury as to the proper process of reasoning upon the facts, or as to the precautionary considerations to be borne in mind in coming to a proper conclusion upon the facts, by a dissertation, however it may be shaped, upon the nature and effect of evidence, his opinion upon the weight of the evidence may be infused into his charge upon the subject; arid'really influence the jury, by that mode of communicating it, as effectually, and sometimes more so, than by a direct expression of it.” We cannot say that the 5th instruction given by the court to the jury did not influence the jury in finding their verdict.
We do not believe that the evidence is sufficient to warrant the verdict of the jury. Before a jury is authorized to find a defendant guilty in any criminal case, and especially in one which deprives him of his liberty., subjecting him at the same time to such ignominious punishment, there must be evidence sufficient to prove that an offense has been committed, and to identify the defendant with the commission of it, as charged in the indictment.
The Code prescribes as one of the grounds for a new trial that “the verdict is contrary to the law and the evidence,” and also that the “ supreme court may reverse the judgment in a criminal action as well upon the law as upon the facts; but, when a cause is reversed for the reason that the verdict is contrary to the weight of the evidence, the same shall, in all cases, be remanded for a new trial.” Pasc. Dig., Arts. 3137, 3210.
*184As a last resort the duty devolves" upon us to determine whether or not there has been adduced before the jury a sufficient amount of legal evidence to allow the judgment to stand and become a precedent in the adjudication of other offenses under the law.
The judgment of the district court is reversed and the cause remanded.
Reversed and remanded.