For the purpose of fixing beyond question the fact that the defendant claimed to be the owner of the animal charged to have been stolen, the prosecuting officer introduced and read in evidence defendant’s sworn application for continuance, which had been filed just before going into trial. In this application defendant avowed that he had purchased the cow from one Clements, the absent witness for whose testimony the continuance was desired. With a view to this evidence, the court instructed the jury as follows, viz.: “ When the State introduces the confessions or declarations of a defendant, the jury are not bound to believe them all, but are at liberty to judge of them, like all other evidence, by all the facts and circumstances of the case, and may, if they see sufficient grounds for so doing, believe that part which charges the accused and reject that which is in his favor; but this rule is not an arbitrary one, which you will adopt without any reason therefor, but only when you find sufficient reason for so doing, after considering all the testimony in the case.”
Though abstractly correct, yet, as applicable to the particular facts in this case, we are of opinion that the charge was erroneous, in that it was more than mere intimation, and amounted in effect to telling the jury that there were portions of the affidavit for continuance which were true and others which were not, and their attention was particularly called to the fact that they might “ believe that part which charges the accused and reject that which is in his favor.”
A charge to the jury is perfectly unexceptionable only when the judge confines himself to the duty of setting forth the law applicable to the case, without either expressing or intimating any opinion as to the weight of the evidence, or the credibility of statements made by the party accused or the witnesses. Ross v. The State, 29 Texas, 499 ; Butler v. The State, 3 Texas Ct. App. 48; Jackson v. The State, 1 Texas Ct. App. 363; Fisher v. The State, 4 Texas Ct. *232App. 181; Satterwhile v. The State, 6 Texas Ct. App. 609.
We are of opinion that the court did not err in admitting in evidence what was done by the witnesses Freeman and Clements towards ascertaining the brand which was upon the cow. The admissibility of such evidence could not be affected, we apprehend, one way or the other, by the presence or absence of the accused at the time. Nor did the court err in permitting the witnesses to testify that the cow charged to have been stolen was recognized as an estray in their neighborhood, where she ranged. Such evidence was about as good and satisfactory as could have been adduced that she was an estray, whose owner was unknown.
None of the other errors complained of are likely to arise upon another trial.
For error in the charge of the court, the judgment is reversed and the cause remanded.
Reversed and remanded.