Appellant was convicted of theft of a horse. To prove the guilt of the defendant, the learned judge below, in his explanation of a certain bill of exceptions, informs us that “ The State proved by the witness Arrington that he purchased the horse from defendant. Defendant proposed to prove what he (defendant) said to Arrington at the time, which was objected to, and defendant’s counsel persisted and desired to state in the hearing of the jury what he expected to prove by said witness, and I did not think the evidence could be legitimate for any purpose, and did not think it proper for the counsel to state what he desired to do, in the presence of the jury, and therefore signed his bills, believing that defendant cannot make evidence for himself, no matter what he could prove by the witness.”
The fact that defendant was in possession of and sold the horse to witness Arrington clearly shows a recent possession, and unless explained becomes very strong inculpatory evidence against him. His explanations, therefore, of the manner in which he obtained possession of the horse were not only clearly admissible, but a failure to explain frequently becomes an inculpatory fact itself. The State having introduced the possession by the defendant, not only were his explanations admissible but of imperative necessity.
We are of opinion that no rule is better settled and more thoroughly supported by the authorities than the one holding these explanations admissible. The bill of exceptions shows that the counsel for the defendant asked time to prepare his bill at the time. This he had the legal *152right to clo. Code Crim. Proc. art. 686; Rev. Stats, art. 1358; Sager v. State, ante, p. 110.
Judging from the other bills on the same subject, we are justified in presuming (and as the judge below denied the defendant’s counsel the right to reserve his bill at the time, presumption is the last resort) that the explanations would have been reasonable and complete. The evidence on the part of the State was to the effect that “ Ellis had agreed to make a tank for one Mr. White, for which he was to receive fifty dollars,— twenty-five dollars of which was to be paid in the mare.” Ellis employed the defendant to assist him, and, after working on the tank for some while, White, who then owned the mare, delivered the same to the defendant in the presence of Ellis. Defendant used and rode the mare as his own property. Defendant worked on the tank for three or four weeks, and finally defendant and Ellis had a difficulty, Ellis driving defendant from his place, using a gun,— the gun not being in shooting order. The defendant disclaimed any right to the mare at the time of the difficulty. And the recent possession of the defendant was shown by the 'evidence of the witness Arrington. This being the case as made by the State, the explanations of defendant’s possession to the witness Arrington were of the first importance,—not only competent evidence but demanded of him by the very nature of the case.
The court, therefore, erred in rejecting these explanations. The theory of the defense, which was strongly supported by the facts, is that of a claim to the property. This defense was utterly ignored by the charge of the court; which was an error.
The judgment is not supported by the evidence which if necessary could be very clearly shown. For the errors above indicated the judgment is reversed and the cause remanded.
Reversed and remanded.