Repeated decisions of courts of last resort in this State, as well as the provisions of our statute, have established the principle that upon the trial of a felony case it is incumbent upon the court to instruct the jury as to the law, and all the law, applicable to the case, and to every issue legitimately deducible from the evidence. It is the fundamental policy of the law that in trials for the graver offences, which may result in the deprivation of life or liberty, the jury shall have presented to them in plain language the law governing the exact issues they are called upon to determine, so framed that their minds can readily comprehend and solve the question of guilt or innocence by an easy and simple application of the law to the facts they find to be true.
A charge which submits some of these issues, especially such as are based upon evidence tending to establish the innocence of the person on trial, in an inferential or negative way, does not meet this legal requirement. The defendant is entitled to a distinct and affirmative presentation of the issues arising upon his evidence, in order that the jury may not be induced to ignore his defences upon the supposition that the court did not deem them of sufficient importance to justify consideration, and for a further reason *415that without such presentation the jury are in no condition to make an intelligent selection of the law which should govern them in case they should find that the defendant’s evidence was true. Heath v. The State, 7 Texas Ct. App. 464; Smith v. The State, 7 Texas Ct. App. 414; Beckham v. The State, ante, p. 52.
It may often happen that the testimony in defence has been fabricated, and that so inartistically as to bear upon its face an air of improbability or actual untruth ; but even then the court is not relieved from the duty of considering it in framing his charge, as it is the right of the defendant to have its truth or falsity determined by the jury and not by the court in the first instance. As said by this court in the recent case of Riojas v. The State, ante, p. 49, in discussing this identical question: “In view of all the evidence elicited on the trial, it is more than probable that this defence, even under a proper instruction, would have had no appreciable effect with the jury, and would have been discarded altogether by them in reaching their conclusion. But that was not a question for the determination of the court below, and cannot be with this court on appeal. The provinces of court and jury are plainly and rigidly defined by law, and it is not for the former to act upon a belief that the latter cannot be affected by any particular portion of the evidence. Possibly they (the jury) may entertain an altogether different view of the evidence, as is their undoubted prerogative under the law.”
The testimony of the defendant in this case tended to show that the burglary for which he was on trial was in fact perpetrated by another party, without his participation or procurement, and that the fruits of the crime came into his possession innocently, several days after its commission. If the jury should believe this testimony to be true, it was their duty to acquit, and they should have been instructed that such a state of facts, if found to be true, constituted in law a complete defence to the prosecution. This instruction *416is not found in the otherwise full and explicit charge of the court, and its omission cannot, in view of the facts of the case, be deemed as immaterial and harmless to the defence.
The other errors assigned are not tenable. The testimony of the witnesses Upshaw and Garland was merely cumulative, and the refusal of the application for continuance on account of their absence, in view of the testimony, cannot be deemed erroneous. The indictment sufficiently charges the offence of burglary, and the evidence objected to as to property other than that set out and described in the indictment being found in possession of the appellant at the time of his arrest, seems to have been excluded by the court from the jury, upon an immediate second consideration of the matter. It is not perceived that the action of the court, as an entirety, was prejudicial to the appellant, or that the fairness of the trial was affected by an erroneous ruling in the first instance.
Because the court failed to charge all the law applicable to the case, the judgment is reversed and the cause remanded.
Reversed and remanded.