The judgment in this case must be reversed for several errors apparent in the proceedings below, each of which will be briefly indicated.
1. The charge of the court clearly invaded the province of the jury, and contains a paragraph which can be considered naught save a direct comment on the weight of the evidence. After a proper instruction to the jury upon the force of the conviction essential to be made upon their minds by testimony wholly circumstantial, before they would be authorized in law to convict, the learned judge added the following: “Circumstantial evidence, like all other evidence, should be examined with great care ; but when the circumstances constituting the chain of evidence are properly and closely linked together, and are consistent with themselves and with the principal fact in issue, it is capable of leading the mind to very satisfactory conclusions.” This may be almost axiomatic, and yet not proper to be incorporated in a charge ; for the jury must be left to determine for themselves whether the evidence adduced before them “is capable of leading the mind to very satisfactory conclusions,” without any advice from the court, which is especially to be condemned in a case like this, in which the inculpating facts were of so meagre a character as to fully justify a natural apprehension that the minds of the jury *385were not likely to reach a satisfactory conclusion. The paragraph in question should have been omitted. Stuckey v. The State, 7 Texas Ct. App. 174; Harrison v. The State, ante, p. 183.
2. The contingency arising upon the testimony of the witness Shelin was fully provided for in the Code; and in view of the showing made by appellant, the court should have granted him a reasonable time in which to produce the witness Sommers. Code Cr. Proc., art. 568. From the affidavit of said witness, appended to defendant’s motion for a new trial, it appears that he Avas cited (or subpoenaed) to apirear at the trial at eleven o’clock, by which time the jury had apparently retired for deliberation. A reasonable delay of an hour or two in the progress of a trial involving the life of a defendant, or his liberty for life, is trivial when taken in comparison with the graver issues at stake. Dispatch is to be commended in judicial proceedings, but never at the sacrifice of a full and fair investigation, by which the defence and the prosecution alike are afforded all reasonable means and opportunity for adducing all evidence on their respective sides which may tend to illustrate the very truth of the issue before the court. The absent testimony was material, and the court should have corrected its error Avhen called to pass upon the motion for new trial.
3. In view of another trial, a discussion of the facts in evidence may with propriety be omitted, but we deem it not amiss to call to the attention of the court and the prosecution that principle of law which requires that there shall be evidence pertinently identifying the defendant with the transaction, beyond a mere probability or strong suspicion, before a jury is authorized to convict of a grave felony. It may be that on another trial the evidence may be of a perfectly satisfactory character, but, as presented in the record before us, a new trial should have been granted in the court belorv.
The judgment is reversed and the cause remanded.
Reversed and remanded.