delivered the opinion of the court.
The fifth instruction for the state- is fatally erroneous. It is a charge upon the weight of evidence. It selects and magnifies certain fragmentary ’ portions of the evidence. It attempts to put the facts constituting the theory of the- state, but fails to put them all, and it charges the jury that they may find the defendant guilty if they believe so and so- — doe's not state that they should believe beyond a reasonable- doubt, but that particular defect is cured by the instructions for the defendant. But, worse than this, it charges that they may find the defendant guilty if they simply believe so and so. They are not required to believe from the evidence. It is impossible to affirm this case, which is an exceedingly close one on its facts, in the face of an instruction so grossly erroneous.
Reversed and remanded.