The appellant was prosecuted to conviction on a charge of wilfully killing a gelding, the prop*643erty of one Callahan, with intent to injure the owner. The State relied on circumstantial evidence alone for a conviction. The defense of alibi was omitted in the general charge of the court, but the omission was corrected by giving a special instruction at the request of the defendant’s counsel. The general charge of the court, in the paragraph relating to the right of the jury to weigh the testimony given them, under the facts proved on the trial, we deem to be erroneous in that it permitted the jury arbitrarily to reject or receive and credit the testimony of the witnesses who had testified before them. The error we complain of is found in the fourth paragraph of the charge, in which the court, after having correctly informed the jury that they were the exclusive judges of the weight of the testimony and the credibility of the witnesses, proceeds to lay down rules by which they were to be governed, and which enabled them to cull the testimony against the defendant, and found a verdict upon it, and arbitrarily reject the testimony produced on behalf of the defendant.
It is preferable to give the jury these instructions substantially in the language of the Code of Procedure, article 728, as follows: “The jury in all cases are the exclusive judges of the facts proved, and of the weight to be given to the testimony, except where it is provided by law that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or when the law directs that a certain degree of weight is to be attached to a certain species of evidence.” Ordinarily and in cases like the present, the exceptions mentioned have no application and' need not be embraced in the charge. Generally the law would bé ■satisfied by giving the jury such instruction as is embraced in the first part of the article, omitting what follows after and including the word “except.”
That.portion.of the charge which attempts to lay dqwn *644rules for the guidance of the jury in forming a verdict was erroneous and certainly hable to mislead the jury to the prejudice of the defendant, and on this account the judgment will be reversed and the cause remanded.
Reversed and remanded.