A motion is made by the assistant attorney general to dismiss the appeal in this case, for want of a proper final judgment, the defect being that the judgment does not come up to the requirements of the 9th subdivision of art. 791, Code Crim. Proc., defining the constituents and requisites of a final judgment, and requiring that it shall recite, in case of a conviction, “that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury.”
It seems that article 791 has special if not exclusive reference to felony cases; at all events it is not made requisite to judgments in misdemeanor cases where the punishment assessed is a pecuniary fine only. For in article 805 it is provided that “ when a punishment assessed against a defendant is a pecuniary fine only, the judgment shall be that the State of Texas recover of the defendant the amount of such fine and all costs of the prosecution, and that the defendant, if present, be committed to jail until such fine and costs are paid,” etc. The judgment in this case is in substantial compliance with this latter article, and the motion to dismiss the appeal is overruled.
Having been submitted on its merits, subject to the motion to dismiss, the judgment in this case will have to be reversed for error in the charge of the court. Defendants were prosecuted for fornication. Amongst other things, in the last paragraph of the charge the court instructed the jury that “ every person is presumed to be innocent until his or their guilt is established by legal testimony; but, if the proof in cases like this shows that the defendants did live and sleep together in the same room, and had for a series of months, it is strong evidence against the accused.” This instruction was directly on the weight of evidence, and as such is expressly prohibited by statute. Code Crim. Proc. art. 677. *381An exception was duly saved by bill to this charge, and it is assigned by defendants as error. We have no option in the matter.
The judgment is reversed and the cause remanded.
Reversed and remanded.