The ninth paragraph of the charge of the court, which is complained of in the first subdivision of the assignment of errors, is clearly erroneous under the previous decisions of this court. The language used is: “ Unless all the material facts proven to your satisfaction lead to and establish the conclusion that the defendant is guilty of burglary as alleged, to the exclusion of a reasonable belief to the contrary, you must find the defendant not guilty.”
*280A similar- instruction, and almost verbatim, was passed upon by this court in the cases of Smith v. The State, ante,. p. 150, and Robertson v. The State, ante, p. 209, decided at our late Austin term, and it was held that “ it is not essential to an acquittal that the jury should entertain a reasonable belief, or any other kind of belief, that the defendant is not guilty, but the law presumes that he is not guilty until his guilt is established by competent evidence to the satisfaction of the jury, beyond a reasonable doubt; ” that “ this presumption of innocence continues throughout the trial and until the return of a verdict of conviction, and it might often happen that a jury is required under the law and the evidence to return a verdict of acquittal when each member of the jury might reasonably believe that the defendant was not innocent.” McMillan v. The State, 7 Texas Ct. App. 142.
Other errors are assigned, but they are not considered tenable, or likely to arise on another trial, and are therefore not discussed.
Reversed and remanded.