Appellant was convicted of wilfully obstructing a public road. Among other charges given to the jury by the court was the following: “The wilful intent of the defendant is presumed, and it devolves upon the defendant to show his innocent intent.” We presume the judge who gave this charge was of the opinion that it was warranted by Articles 50 and 51 of the Penal Code. We think it was not authorized by the law, and was not applicable to the facts of this case.
A most vital issue raised by the evidence in this case was the intent of the defendant in placing his fence across the road, that is, whether the act was wilfully done, or done through mistake of fact. ' In order to legally convict the defendant, it was necessary for the prosecution to show by its evidence that he obstructed the road wilfully. Until this proof was made there was. no case made out against the defendant which called for any testimony on his part in excuse or justification. This was not a case wherein the burden of proof devolved upon the defendant, as charged by the court. This charge of the court was in direct conflict with Article 11 of the Penal Code, which declares that Every person accused of an offense shall be presumed to be *69innocent until Ms guilt is established to the satisfaction of those whose province it is to try him.” By this charge the presumption of innocence was destroyed, and. the jury were directed to presume the defendant guilty. (Jones v. The State, 13 Texas Ct. App., 1.) There was nothing in the remainder of the charges given to the jury which corrected this manifest error.
Another portion of the charge was also erroneous. It was as follows: “If you believe from the evidence that the defendant is not guilty you will acquit him.” It is declared by law that “The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence; and in case of reasonable doubt as to his guilt, he is entitled to be acquitted.” (Code Crim. Proc., Art. 640.) By this charge the jury were in effect told that they must find the defendant guilty unless they believed from the evidence that he was innocent. Such a proposition is contrary to the express provision of the law. (McMillan v. The State, 7 Texas Ct. App., 142.)
For the errors in the charge of the court above noticed, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered April 21, 1883.