1. The accusation setting forth the offense in the language of the code, and so plainly that the nature of the offense could easily he understood by the jury, the demurrer was properly overruled.
2. The factum of the allegations contained in the indictment is for the jury, but their materiality is to be determined by the court. Consequently, to charge the jury, without explanation, that “the State is required to prove each and every material allegation in the accusation, to the satisfaction of the minds of the jury beyond a reasonable doubt, and the jury is to decide as to the materiality of the allegations,” is error. A crime is defined by the allegations in an accusation, but it is the duty of the court to legally explain the definition.
3. In a criminal case in which the guilt of the defendant is dependent wholly upon circumstantial evidence, it is error not to instruct the jury that if the proved facts are reasonably consistent with innocence, he should be acquitted. Judgment reversed,.
In the motion for a new trial it is alleged that the court erred in the, instruction set out in the foregoing decision, and erred in failing to give in charge to the jury the law as embodied in section 984 of the Penal Code, or to point out under what circumstances a conviction on circumstantial evidence would be warranted. B. L. Tipton, M. Tison, J. II. Tipton, for plaintiff in error. J. A. Comer, solicitor, W: E. Talley, contra.