It is not shown by the record that defendant ever pleaded to the indictment in this case, or that, standing mute, a plea was entered for him. Gorman v. The State, 6 Texas Ct. App. 112.
It appears almost incredible that this omission should so frequently occur, after the many and repeated decisions on the subject, and when the duty with regard to the plea is so plainly and positively enjoined by law. If there was in fact no plea, then there was no issiie for the jury to try or the court to determine ; if there was a plea, then the record •must show' it affirmatively, or the case will be reversed on .appeal until it is shown.
*375The attention of the judge is called to the fact that a portion of a charge to the jury, when subjected to strict rules of criticism, might be obnoxious in that it assumes matters essential to have been proven.
Because there is no plea in the record, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.