delivered the opinion of the court;
This is a writ of error to a judgment of the Criminal Court of Record of Duval county, the plaintiff in error having been convicted upon information charging him with *357having unlawfully kept, exercised and maintained a room for the purpose of gaming.
The same instructions that were asked and refused in the case of Wooten vs. State, handed down with this [supra, p. 335] were presented and denied in this, and the same charges were given to the jury in this as were given in that, except that stated in the fourth subdivision of our opinion in the former case, to the effect that “ the law presumes every man innocent until he is proven guilty by proper legal evidence, and if you have any reasonable doubt as to the guilt of the defendant, arising from the evidence, your shall acquit him.” The effect of this charge as doing away with the necessity of giving the instruction set out in the fourth subdivision of that opinion, which was asked and refused, is fully explained. If it had not been given we should have granted a new trial in Wooten’s case. There is nothing in the statute under which the information in these cases were filed that deprives a person charged under it of the benefit and protection of the presumption of innocence which remains with every one upon trial for crime as long as there is a reasonable doubt of his guilt. Whart. Cr. Ev., Secs. 322, 718. In the absence from the record in this case of the charge given in the other, we cannot but feel that the jury may, in view of the refusal of the Judge to give the instruction asked, have withheld from the plaintiff in error the benefit of the presumption in question, and have attributed to the fourth section of the statute an effect to which it is not entitled.
A new trial must be granted, and the opinion in the Wooten case is sufficient as to any point suggested by the record before us as likely to arise in this case upon a new trial.
The judgment is reversed and a new trial granted.