The defendant was in-dieted, tried, and convicted (under art. 766 of the Criminal Code, Pas. Dig., art. 6549) for having taken into his possession, and removing from its accustomed range, a cow branded in two places with the letter 0 and figure 2, with the intent, &c., the cow not being his own, &c.
Defendant’s motion for a new trial having been overruled, an appeal was taken, and the case is presented on the exceptions taken and errors assigned.
So much of the assignment of errors will be noticed as is deemed of any importance. It is sufficient to say that the assignment that “the court erred in its instructions to the jury ” is not sustained by an examination of the charge of the court to the jury. The charge and instructions of the court are full, clear in statement, and embrace “the law applicable to the case.”
Defendant excepted to the refusal of the court to admit the evidence of Eapier and Halabe, on behalf of defendant, to show that in April, 1872, one James Lane, said to be from Gonzales, was driving a drove of cattle to Kansas, and in passing through Williamson county informed witnesses and other persons that his herd had “stampeded; ” that he authorized them and others to gather and sell or dispose of such stock belonging to him. Lane, and that his road-brand was a figure 2. Defendant further offered to prove by Halabe that he had been authorized by Halabe to collect the stock said to belong to Lane, and having the road-brand 2, and that Halabe sold to him the animal described in the indictment, having first informed defendant of his authority from Lane to sell the same. The court refused to permit the witnesses “to testify to any of these facts, unless accompanied with proof that said James Lane, *170the owner, had at the time a written bill of sale or bills of sale of these alleged lost cattle, duly acknowledged or proven, and recorded and certified, as by law provided.” The court further refused to permit Halabe to testify to the sale of the cow by him to defendant, “unless upon the further proof of said James Lane having for himself a proper written bill of sale of said cow, so as to show a complete chain of title to the cow.”
We think the evidence was admissible in order to explain the possession of the animal charged to have been stolen. While his possession of it was prima facie illegal, such possession was not conclusive of a felonious taking. (See Mills v. The State, decided during the present term.) And while the evidence might not be sufficient to show title in defendant or Halabe to the property, or authority to drive or sell, it was nevertheless evidence that should have been permitted to go to the jury, in aid of the accused in rebutting, so far as it, in the mind of the jury, tended to rebut the felonious intent. How far, under all the facts and circumstances of the case, it might go in favor of the defendant, it is not our province to determine. It was testimony, however, to which the accused was entitled, as it might have led the jury to reduce the punishment to the penalty prescribed for a misdemeanor, under art. 767 of the Criminal Code, (Pas. Dig., art. 6553.) The refusal of the court to permit the evidence to go to the jury was error, for which the judgment is reversed and the cause remanded.
Eeversed and remanded.