Article G77 of the Code of Criminal Procedure-provides that, “After the argument of any criminal case is concluded, the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case.”
Applicable to what case? Any and every case which might be presented by any state of facts admissible under the indictment? Most evidently not. But clearly “applicable to the case” charged in the indictment and presented by the evidence,. By this article the charge of the court is rigidly restricted; first, to the allegations in the indictment; and second, to the case made by the evidence—that evidence which is admissible under-the allegations of the indictment.
We will illustrate by a case of murder, because in murder cases trial judges most frequently commit the same error we are attempting specifically to point out in this opinion.
A is charged with the murder of B. Now all murder committed by poison, starving, torture, or with express malice, or committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, or burglary, is murder of the first degree. And under an indictment for murder of the first degree by reason of express malice, an indictment which omits all mention of the perpetration of, or the attempt to perpetrate, arson, rape, robbery or burglary, evidence can be adduced on the trial to, *606'establish murder of the first degree by reason of the fact that the murder was committed in the perpetration of, or the attempt to perpetrate, either of these offenses, provided the means, or instrument used by which life was destroyed, be that which is ■alleged in the indictment.
How suppose that upon the trial no evidénce is adduced tending to prove that the murder was committed in the perpetration ■of, or the attempt to perpetrate, either of these offenses, the case— that to which the law must be distinctly applied by the charge, bearing upon the question as to whether the homicide was murder of the first or second degree—is simply one with express "malice vel non. And to this case, thus charged in the indictment and made by the evidence, the laiu must be distinctly ap.plicd, notwithstanding, under an indictment thus framed, evidence could be legally introduced tending to show that the murder was committed in the perpetration of, or the attempt to perpetrate these offenses.
If this be the rule in cases in which evidence is admissible-Under an indictment thus framed, to show that the murder was •committed in the perpetration of these offenses, with much stronger reason does -the rule condemn a charge which applies "the law to a murder committed by poison or starvation; a murder committed in such manner, and by such means, as are wholly at variance with the means or manner charged in the in•dictment; and in regard to a murder committed by such means, under, an indictment thus framed, no evidence could be admitted.
The rule, therefore, is, the indictment permitting the evidence, the laiu must be distinctly applied to the case as made by the evi■dence, and not to each and every case which might be made by evidence permissible under the indictment.
How let us apply the rule to the case in hand. Appellant was convicted of the theft of two bales of cotton. Ho witness saw him when he took the cotton, it being taken at night from the gin yard. But, to the contrary, it required very close examination of wagon tracks, and a remarkable discrimination between the different tracks, to. successfully pursue the wagon of the thief to the discovery of the stolen cotton in the woods. There ■is not the slightest hint in the statement of facts that the defendant came into possession of the cotton by lawful means—by some false pretext; but, as we have seen; it required nice work *607-and a high degree of perseverance, to discover that defendant had the cotton.
Opinion delivered March 19, 1884.The case presented in Article 727, Penal Code, was not the case made by the evidence in this cause. The learned judge, however, charged the jury that, “You are further instructed that the taking must be unlawful, so that if the cotton came into possession of the defendant by lawful means, the subsequent appropriation of it by the defendant is not theft; but if the taking, though originally lawful, was obtained by any false pretext, or •with intent to deprive the owner of the value thereof and to appropriate the same to the use and benefit of defendant, and the same is so appropriated, the offense of theft is complete.” To this charge the defendant excepted and reserved his bill of exceptions. This was error, for the evidence presented no such •case to which the law could be distinctly applied. Did it injure •defendant ? The learned counsel for defendant thought so, for he promptly excepted. It certainly was not beneficial to defendant, and may have confused the jury. That it was assuming is evident, and it may have induced the jury to believe that such a state of facts did exist, especially in the mind of the learned presiding judge.
This charge being evidently wrong, and not beneficial to the •defendant, and having been excepted to at the time, we have no discretion, but must reverse the judgment. (Arts. 677, 685, Code drim. Proc.) The judgment is reversed and the cause remanded.
Reversed and remanded.