One Antonio Olivarez had been separately indicted, tried and convicted of the same identical charge contained in the indictment against this defendant. When this case was called subsequently, one of the jurors herein summoned, to wit, Charles Meuley, when examined as to his qualifications stated on his voir dire that he was present and heard the testimony on the trial of Olivarez, and had formed the opinion that Olivarez was guilty as found by the jury. He stated, however, that he had formed no opinion as to the guilt or innocence of this defendant from having heard said testimony. Defendant’s challenge for cause, based upon the fact above stated, was overruled by the court, and, his peremptory challenges being exhausted, the juror was impaneled and sat upon and tried the case.
We are not prepared to say that the court erred. It is not at all unreasonable that the juror might have heard *641all the evidence in the other case and been convinced of the guilt of Olivarez, and yet have formed no opinion whatsoever as to the guilt or- innocence of this defendant. We can easily imagine how such might be the case, where one party to a transaction is principal and the other an accomplice, and where one was the party stealing and the other the receiver of the stolen goods, knowing them to have been stolen. Before we would be warranted in holding the juror incompetent or necessarily partial on account of an established opinion, for the reason named, the bill of exceptions should show that the evidence, and also the liability of the parties under it, would necessarily be the same. Still, in this country where fair and impar-, tial jurors can be had so readily, there is really no reason! why questions of this character should arise, and in all cases where there is a possibility for serious doubt as to the impartiality of a juror, from whatever cause, the court, in the exercise of the discretion conferred upon it, should promptly discharge him. Code Crim. Proc. art. 636, subdiv. 13.
Objection was made by defendant to proof of the three ear-marks of the alleged owner of the sheep, because the best and only evidence of the ear-marks of animals would be the record or a certified copy thereof. In support of this position, arts. 4556 and 4561, Rev. Stats., are relied upon. By the former it is true that owners of stock, including sheep, are required to have an ear-mark and a brand, and to have the same recorded. The latter article provides that “no brands except such as are recorded by the officers named in this chapter shall be recognized in law as any evidence of ownership of the cattle, horses or mules upon which the same may be used.” If this latter article applied at all to sheep,— which are not mentioned in it,— it does not apply to marks, but to brands only. Johnson v. State, 1 Texas Ct. App. 333. The court did not err in overruling the objection to the evidence.
*642Nor was it error to permit the district attorney to testify to a statement made by defendant to him, on the trial of Olivarez, to the effect that, “I asked the defendant H. L. Dreyer if the man then on trial was Antonio Olivarez? Dreyer said ‘no, that is not Antonio Olivarez; that is Valentine Martinez. I know him.’ ” It is shown by the bill of exceptions that defendant H. L. Dreyer was not in charge of any officer at this time, but was voluntarily in the court house, being simply under bond. And the statement of the district attorney as to his motives in approaching defendant and asking him the question fully exonerates him from the imputation of unfairness or deceit in the matter; his object as stated being to make a witness of Dreyer in case he identified Martinez as the party who claimed to be Olivarez when he executed the bill of sale.
The remaining bill of exception points out two errors in reference to the charge, which we think are fatal to the validity of the judgment. In the 7th paragraph of the general charge the jury were instructed as follows, viz.: “ If from the evidence you believe that the defendant did buy the animals described in the indictment from another in good faith, with or without a bill of sale, he is not guilty; but if you believe from all the circumstances surrounding the transaction in proof that the sale was not made in good faith but only to cover a fraudulent taking, then such sale would be no defense.” Under this instruction the jury would have been fully warranted in finding the “ sale ” as made by Olivarez fraudulent so far as he, Olivarez, was concerned, and, having so found, would not give defendant, even though they might have believed him an innocent purchaser, the benefit of it in his defense. The sale might have been a base and fraudulent deceit on the part of Olivarez, and yet the defendant have been an innocent and honest purchaser. “In a trial for theft it is error to so charge the jury as to permit the *643conviction of the accused without proof of guilty knowledge or intent.” Logan v. State, 2 Texas Ct. App. 408.
Almost every day’s experience teaches us that honest, upright, innocent men are made the victims of false, fraudulent and dishonest sales,—that they are the dupes of thieves and villains. But because they have been victimized is no reason why they should be held criminal, or be deprived of the right to show that fact. We are aware that this particular charge which we are commenting upon is copied verbatim from a charge given in the case of Shoefercater v. State, 5 Texas Ct. App. 207, and which was moreover highly commended for its fairness by this court. A mature consideration of the language leads us to the conclusion that a proper construction was not given it in that case, for the very language used by Presiding Judge Ector shows that he construed the word “sale” to mean and be synonymous with “trade,” and to embrace within it the acts of both parties, and not the act of the vendor alone; for he says, “It was a proper question to be left to the jury to determine, whether the defendant traded with Arthur for the oxen in good faith, or whether the transaction between them was only a device to cover a fraudulent taking on their part.” Evidently he is speaking of the joint acts of the parties in the sale and purchase. If his construction had been correct, there can be no doubt of the correctness of the views expressed. We do not think the construction correct. The word “sale” unquestionably means the act of the vendor, and, if the jury so understood and acted upon it, they were manifestly misled to the injury of the defendant. The learned judge presiding below is not to blame for having fallen into this error.
Another error complained of is that the charge omits to instruct the jury upon the law of circumstantial evidence, and that the court refused a requested instruction upon this branch of the case. This error is well assigned, *644and the requested instruction should have been given. Hunt v. State, 7 Texas Ct. App. 212; Smith v. State, 7 Texas Ct. App. 382; Struckman v. State, 7 Texas Ct. App. 581.
There is another matter to which we would call attention, and it is this: Whenever, under an ordinary indictment for theft, it is sought to hold the defendant liable under evidence proving the receipt, and concealment of stolen goods, the verdict of the jury should show that they found him guilty of receiving and concealing stolen property, knowing it to be stolen. This is recommended as the better practice, and the reasons for its observance will be found in the cases of Vincent v. State, 9 Texas Ct. App. 46; McCampbell v. State, 9 Texas Ct. App. 124, and Cohea v. State, 9 Texas Ct. App. 173.
Because of error in the charge of the court as above indicated and discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.