The evidence is in sharp conflict. The corpus delicti was proven by the undisputed evidence, and the testimony for the state tended to prove the guilt of defendant. This being the case, the general charge was properly refused.

Refused charge 2 does not state a correct proposition of law. The presumption of innocence is an evidentiary fact, and attends the defendant until that presumption is overcome by the evidence beyond a reasonable doubt. When that time arrives, the presumption fails and continues no longer. *Page 140

It is insisted by appellant that the court erred in permitting L. E. Fitts, a deputy sheriff, to take the witness stand before the indictment was read to the jury. The bill of exceptions does not show that this was done. But, even if it was done, it was of no moment. The fact that Fitts sat in the witness chair while preliminaries of the trial were being had could not in any way prejudice defendant's rights.

The other exceptions presented are without merit.

There is no error in the record, and the judgment is affirmed.

Affirmed.