There is but one question raised by the counsel for the defendant, and that is as to whether the defendant’s motion for a new trial was properly overruled. The only ground set out in the motion is that the verdict off the jury was contrary to the law and the evidence.
The defendant, together with one John Lindsay, was indicted for the theft of a black gelding: There was a severance in the trial. Brown was tried and convicted, and his punishment was assessed at five years in the penitentiary.
No exceptions were taken to the charge of the court; no additional instructions were asked. In fact, the counsel *145for the defendant, in his able brief, sets out with the declaration that he thinks that the court gave the law in charge to the jury, and, if they had regarded the charge, a different result would have been reached; and that therefore the court erred in overruling defendant’s motion for a new trial.
It is insisted, on 'the part of the defense, that the state having put in evidence the declarations of the defendant, if they were not contradicted by other evidence, and were not improbable in themselves, the jury were bound to acquit ; that the state having also placed in evidence the declarations of Lindsay (the party jointly indicted with Brown), and they agreeing with and corroborating each other, and being uncontradicted and consistent, therefore they must be taken as true. And, in support of this position, counsel makes the following quotation from Roscoe’s Criminal Evidence : “There is no doubt, if the prosecutor uses the declaration of a prisoner, he must take the whole of it together; and, if there be no other evidence in the case, or no other evidence incompatible with it, the declaration so adduced must be taken as true.”
Unfortunately for the position of the defense, this is not all that is said in this immediate connection by Mr. Roscoe. The learned author continues: “But if, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so ; and then the statement of the prisoner, and the whole of the other evidence, must be left to the jury for their consideration, precisely as in any other case when one part of the evidence is contradictory to the other.”
When the state’s counsel uses a prisoner’s statement, he must take the whole of it together; but there is not the least doubt that a jury may believe that part which charges *146the accused, and reject that which is in his favor, if they see sufficient grounds for so doing.
Mr. Greenleaf says; " The jury may believe that part which charges the prisoner, and reject that which is in his favor, if they see sufficient grounds for so doing. If what he said in his own favor is not contradicted by evidence offered by the prosecutor, nor improbable in itself, it will naturally be believed by the jury ; but they are not bound to give weight to it on that account, but are at liberty to judge of it, like all other evidence, by all the circumstances of the case.” Greenl. on Ev., sec. 218.
In the case of Roberts v. Gee, 15 Barb. 449, the supreme court of New York say that, “when the oral admissions of a party are resorted to as evidence against him, the rule as now established permits the court and jury to believe that part of an admission which charges the party who makes it, and to disbelieve that part which discharges, when the latter is improbable on its face, or discredited by other testimony.” To the same point see, also, Green v. The State, 13 Mo. 382; Brown's Case, 9 Leigh, 633; The State v. Mahon, 32 Vt. 241; The People v. Wyman, 15 Cal. 70; and Corbett v. The State, 31 Ala. 329.
In the last-mentioned case the supreme court of Alabama say; “When the prisoner’s declarations have been adduced in evidence by the state, it is his right to have the entire conversation laid before the jury; yet it is not true that the declaration so adduced in evidence must be taken as true if there was no other evidence in the case incompatible with it.”
We have been induced to refer to these decisions (and could give many others holding the same doctrine) because it is frequently insisted by counsel before us that, when the statements of a defendant are put in evidence, the jury have no right to believe a part and disbelieve a part.
*147The jury doubtless believed from the evidence that, if the defendant, Brown, did not himself take from the rack the horse for the theft of which he was on trial, he was present and knowing the unlawful intent of his confederate in the crime who did take the animal, and aided and encouraged him in the act. They also believed that the statements made by the prisoner were untrue, and were inconsistent with the other evidence in the case.
The jury are made the exclusive judges of the facts proven, and of the weight and credibility to be given to the testimony. It is the duty of the district judge who presides at the trial, and who, having the witnesses before him and hearing them testify, has better and more ample means of judging of the merits of an application for a,new trial than an appellate court can possibly have, to correct any error committed by the jury in finding their verdict.
The only remaining question for us to consider is whether the evidence is sufficient to sustain the verdict and judgment.
It shows that the defendant and Lindsay were on intimate terms. They were seen together frequently during the evening, and just before the black gelding was stolen, and not far from where the stolen animal was hitched. They went together to an auctioneer in the city of Austin, and Lindsay got the auctioneer to sell a pony (which Brown had let him have), on the pretense that he, Lindsay, wanted to buy another horse. There is no evidence to show that he had any other, or bought any other, horse on that evening.
Between seven and eight o’clock of the same night, in the city of Austin, the . pony that Brown had ridden to Austin, and the black gelding described in the indictment, were found hitched together. Brown’s coat was found tied to the saddle that was stolen with the black gelding; and, when the stolen animal was claimed for the owner by a friend, Lindsay said he had swapped for him with a negro whose *148name he did not know, up the river. Then Brown spoke up and said what Lindsay had just said was so, and that Lindsay could prove it by him, Brown. Just before Brown and Lindsay were arrested they were trying to sell their horses, Lindsay claiming the stolen animal, and Brown the sorrel pony.
After a careful examination of all the testimony, we-believe that it is sufficient to sustain the conviction, and, believing that the verdict of the jury was in accordance with the law and the evidence, the judgment of the district court is affirmed.
Affirmed.