The defendant was convicted of the theft of a mare, and his punishment was assessed at eight years’ confinement- in the penitentiary.
The indictment charged that the stolen mare was the property of A. C. Isaacs. The evidence showed that the mare was branded J I, which was the brand of said *433Isaacs, and that when taken she was running in her usual range in Milam county. Having in view this evidence, the court below instructed the jury as follows: “If the evidence shows that the mare alleged to have been stolen was, at the time she was taken by the defendant (if you find he did take her), branded with the J I brand offered in evidence as the brand of A. C. Isaacs, then if the mare was in Milam county, Texas, on her accustomed range when she was taken, you will presume that she was the property of A. 0. Isaacs, unless rebutted by other testimony. Such brand will be, however, only presumptive evidence of ownership, and such presumption may be rebutted by other testimony.”
In his motion for a new trial the defendant called attention to this charge, and objected to it because it was upon the weight .pf evidence, and made this objection . one of the grounds of his motion for a new trial. But he did not except to the charge on the trial.
We are clearly of the opinion that the charge is obnoxious to the objection. It distinctly tells the jury that if the mare was branded J I, and was in her accustomed range at the time she was taken, they should presume that she was the property of A. C. Isaacs. And it also •fells them that the brand is presumptive evidence of ownership. Besides being a charge upon the weight of evidence, it is not sonnd law. A brand is no evidence of title, unless it is a recorded brand. (Herber v State, 7 Texas, 69.) An unregistered brand is not even presumptive evidence of ownership. An unrecorded brand may be used to aid in establishing the identity of an animal, but not to prove the ownership of the animal. (Poag v. State, 43 Texas, 454; Sweat v. State, 4 Texas Ct. App. 617.) It does not appear from the record before us that A. C. Isaacs’s brand J I was a recorded brand.
It is expressly required by the law that the judge shall «deliver to the jury a written charge in which he shall *434distinctly set forth the law applicable to' the case; but he- . shall not express any opinion as to the weight of evidence, nor shall he sum up the testimony. (Code Crim. Proc. art. 677.) In discussing this subject in the case of Stuckey v. State, 7 Texas Ct. App. 174, Judge Clark uses the following emphatic language: “A charge is unexceptionable only when it states-plainly and succinctly the law of the case, and any departure from this plain rule is liable to just criticism, and oftentimes constitutes material error. The measure of the law is not filled by mere abstinence of the judge from any positive expression as to the weight of the evidence, or his refraining from a positive discussion of the facts. The spirit of the law requires him to avoid even the appearance of an intimation as to the facts, and to so guard the language of his charge that no inference, however remote or obscure, may be drawn by the jury as to the facts in evidence from the charge as given them, which is made the law of the case.”
It is also expressly provided that, “whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles (of which art. 677 is one) have been disregarded, the judgment shall be reversed; provided the error is excepted to at the time of trial.” (Code Crim. Proc. art. 685.) If the objectionable charge had been excepted to by the defendant at the time of the trial, the judgment would necessarily have to be reversed in accordance with the above quoted plain and mandatory statutory provision. (Bishop v. State, 43 Texas, 390; Heath v. State, 7 Texas Ct. App. 464.) But there was no exception made to the charge upon the trial, and it was objected to for the first time in defendant’s motion for a new trial. It was settled in the case of Bishop v. State, 43 Texas, 390, that “if a charge is not excepted to at the time of trial, but presented in a motion for a new trial, *435which is the next point at which it could be presented, then its consideration by this court would be subject to another and very different rule, which would be whether or not such charge was an error which, under all the circumstances as exhibited in the record, was ‘ calculated to injure the rights of the defendant,’ and which is prescribed as one of the grounds for the granting of a motion for a new trial in the following language: ‘ Where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.’ ” The rule above enunciated has been adopted and followed by this court. (Tuller v. State, 8 Texas Ct. App. 501.) It therefore devolves upon us to determine whether or not this erroneous charge of the court “was calculated to injure the rights of the defendant.”
What were those rights ? They were, 1st, to be acquitted of the charge against him unless his guilt was established by competent evidence, beyond a reasonable doubt. 2d. To have the law applicable to the evidence given in charge to the jury. 3d. To have the judge in his charge to the jury refrain from charging upon the weight of the evidence and from discussing the same. These are rights which are guarantied by express law to every person tried for felony. We think the charge of the court referred to bore directly upon each and every one of those rights, and was manifestly calculated to injure them., We do not think that, in arriving at a determination of this question, we are called upon to decide whether or not, in our opinion, the evidence is sufficient to convict ‘the defendant in the absence of the erroneous charge. That would be assuming the province and perrogatives of a jury. It is enough for us to know that the charge of the court was erroneous, and that the error was such an one as was calculated to injure the rights of the defendant.
*436There are numerous assignments of error which have been ably presented in the brief of the counsel for defendant, but we think it unnecessary to discuss any of them in view of the disposition we shall make of the case, as the errors complained of, if they be errors, are of that character that will in all probability not occur upon another trial. We will say, however, that the only substantial error we have discovered is the one we have discussed, and that for this error alone, we reverse the judgment and remand the cause for a new trial.
Reversed and remanded.