The appellant was convicted of the theft of cattle, the property of Jesse Await. For a conviction the. State relied upon the fact that, some day or two after the theft, the defendant shipped the cattle at Corsicana, and that he was seen in the neighborhood from which the cattle were taken, about the time the cattle were stolen, inquiring of the witness if he had or knew of any cattle for sale.
The first ground relied on shows recent possession of the stolen property in the defendant. This possession, however, had not been questioned. He had not been called on circumstantially, directly, or in any manner to account for or explain his possession, until some time after he had parted with the possession by shipping the cattle-
*582If, while in possession, he had been charged with the theft, or in any manner been called on to account for or explain his possession, certainly his right to do so would not be questioned. Does the fact that he had parted with the possession when called upon to explain or to account for it, by the owner, deprive him of his right of explanation, never having had the opportunity of so doing before. The explanation being made (if reasonable) while in possession, and he being called upon to explain, compels the State to prove his account or explanation untrue, or to rely upon other facts for a conviction. This is the effect of a reasonable account of the recent possession of stolen property, if the account is given while in possession.
How does the fact that defendant had parted with the possession affect this principle if when first called upon he explains? An explanation, though accompanied with possession, unless he were called upon for an account, is not admissible. If, therefore, he explains when his possession is first challenged, or when an account is demanded by the circumstances or directly (the State relying upon the possession), we can see no good reason why these explanations should not be received.
This is evidently-the view of this question taken in Hampton v. State, 5 Texas Ct. App. 463. Judge Ector states the rule to be this: “The rale of evidence which allows such declarations to be given in evidence by the accused is limited to the time and to declarations made by him when he is first caught in possession of the stolen property,—-when he first ascertains, or it is made apparent to him, that his right to the ownership of said property is questioned by some one else. The declarations of the defendant when first caught or found in the possession of the stolen property are admissible in evidence, either for or against him.”
The defendant proposed to prove his explanations, made to the owner, and, so far as we are informed by the statement of facts, this was the first time and opportunity at *583which defendant had ever had the (legal) right to account for his possession; he never having been called upon in any manner to explain before. We think the court erred in rejecting this proof. The evidence tends to show that defendant purchased the cattle of one Prior, but, as Prior was a stranger, never having been seen before and but once since, which was a few days after the sale and in the immediate vicinity thereof, that he had stolen the cattle and sold them to the defendant.
Bearing directly upon this phase of the case, defendant, by his counsel, requested the court to give this charge: “If you believe from the evidence that the bill of sale to the cattle described in the indictment was made and executed by one claiming to have the right to sell and dispose of said cattle, possession by the defendant of said cattle under the .bill of sale made to him, and claiming the right and authority as before explained, to sell said cattle, would not be illegal, although said cattle may have been stolen by the person selling the same to defendant, unless you believe from the evidence that the defendant knew at the time of the sale that the person selling had no right or authority to sell.”
The object of this charge was to meet this phase of the case:—that, if the cattle were stolen by Prior and sold and billed to defendant, and defendant knew nothing of the theft, his possession of the cattle would not be inculpatory evidence. Whether the charge as worded was precisely correct or not, it nevertheless was amply sufficient to call attention to this state of case indicated by the evidence, and a charge should have been given thereon.
We are of the opinion that the court erred in refusing this charge, or, if it was not properly drawn, the court erred in not submitting to the jury a proper charge on this branch of the case.
The judgment is reversed and the cause remanded.
Reversed and remanded.