
    Frank Guerra v. State
    No. 31,505.
    February 17, 1960
    
      Clyde W. Woody and Carl E. F. Dally, Houston 2, for appellant.
    
      Dan Walton, District Attorney, Howell E. Stone, Samuel H. Robertson, Jr., Assistants District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   MORRISON, Presiding Judge.

The offense is exhibiting a lewd motion picture; the punishment, 180 days in jail and a fine of $500.00.

The state, through her able district attorney, confesses error, and we agree. The court in his charge instructed the jury as follows:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the said motion picture is not lewd and lascivious as those two terms are defined for you in the preceding paragraph, then you will find the defendant not guilty.”

Appellant timely objected as follows:

“The defendant objects and excepts to Page Two of the charge as said charge shifts the burden of proof and puts a greater burden upon the defendant than is required by law. * * * ”

It is clear that the charge is subject to the objection, and the giving thereof constitutes reversible error.

The judgment is reversed and the cause remanded.  