¶1Two parties, one Calvin Perkins and this appellant, Robert Rice, were jointly indicted at the December term, 1873, of the District Court of Refugio County, for the murder of one Bill Johnson, a freedman of color. As shown by the evidence, Calvin Perkins, since the finding of the indictment, has himself been killed. Appellant, Rice, was tried at the October term, 1877, and the trial resulted in his conviction of murder in the second degree, with the punishment affixed at five years’ imprisonment in the penitentiary.
¶2The court, in the charge to the jury, instructed them that they would find the defendant guilty if they believed from the evidence that the deceased was killed under the circumstances as detailed by the witness Jack West. This, we think, was in effect the same as though the judge had said: “ If you believe Jack West’s testimony, you should find the *455defendant guilty, without reference to what any of the other witnesses might have said.” Clearly, such a charge would be upon the weight of evidence.
¶3It is not for the judge to say what evidence shall be sufficient to warrant the jury in convicting. The province of the judge is to pass upon the legality and admissibility of evidence; and, when he has permitted it to go to the jury, then, the law says, the jury are, the exclusive judges of the facts in every criminal case (Pasc. Dig., art. 3059), and that the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony. Pasc. Dig., art. 3108. See Leverett v. The State, ante, p. 213.
¶4“ A charge is perfectly unexceptionable only when it sets forth the law apjilicable to the case, without expressing or intimating any opinion as to the weight of the evidence or the credibility of statements made by the party accused or by the witnesses.” Ross v. The State, 29 Texas, 499; Jones v. The State, 13 Texas, 175; Butler v. The State, ante, p. 48.
¶5“ A charge, therefore, which extends beyond a plain statement of the law of the case as required by the Code may invade the province of the jury, the full and independent exercise of which has been so plainly and earnestly sought by the Legislature.” Brown v. The State, 23 Texas, 202; Bishop v. The State, 43 Texas, 390; Searcy v. The State, 1 Texas Ct. App. 440; Long v. The State, 1 Texas Ct. App. 466; Massey v. The State, 1 Texas Ct. App. 563.
¶6For error in the charge of the court, the judgment is reversed and the cause remanded.
¶7Reversed and remanded.