¶1A motion in arrest of judgment attacked the sufficiency of the indictment, because the minutes of the court do not show that a foreman for the grand jury which found the bill had ever been appointed by the court, nor do they show that the said grand jury were ever sworn.
¶2“A motion in arrest of judgment shall be granted upon any ground which would be good upon exceptions to an indictment or information for any substantial defect therein.” (Code Crim. Proc., art. 787.)
¶3Exceptions, and the only exceptions, to the substance of an indictment in our practice are those enumerated in article 528 of the Code of Criminal Procedure, and all exceptions to form are specified in article 529. No such grounds as those here asserted are enumerated in the matters rendering an indictment defective for substance; they are matters of form only. “A mere formal objection would not be reached by a motion in arrest of judgment.” (West v. The State, 6 Texas Ct. App., 485; Ferguson v. The State, Id., 504; Bailey v. The State, 11 Texas Ct. App., 140; Niland v. The State, 19 Texas Ct. App., 167; Williams v. The State, Id., 277; Weaver v. The State, Id., 547; Williams v. The State, 20 Texas Ct. App., 357.) It was not error to overrule the motion.
¶4The only defense interposed at the trial was that the defendant had purchased the animal alleged to have been stolen, from one George Washington. Joe Mathews, a brother-in-law of defendant, testified positively to the sale by and purchase from Washington, and that he had witnessed the bill of sale. However improbable this testimony may appear in the light of the other evidence in the case, it was, nevertheless, evidence in the case, and *559it presented an issue which it was the province of the jury alone to pass upon.
¶5In his charge the learned special judge who presided did not submit the question of a purchase vel non to the jury. It is insufficient in this regard. (Ray v. The State, 13 Texas Ct. App., 51; Murphy v. The State, 17 Texas Ct. App., 645; Ryan v. The State, 22 Texas Ct. App., 699.) “If there is any eyidence tending, though slightly, to establish a defense, the defendant is entitled to a charge directly upon that point, no matter what view the court may entertain of the weight and value of the testimony’ (Scott v. The State, 10 Texas Ct. App., 112.)
¶6Because the court failed to charge the law applicable to the defense made, the judgment is reversed and the cause is remanded.
¶7Reversed and remanded.