The defendant was convicted of the theft of horses, and his punishment was assessed at five years’ *490confinement in the penitentiary. The indictment is a good one, and the charge of the court is full, and very clearly instructed the jury as to the law, as applicable to the evidence. The only question which presents to our minds any difficulty is as to the sufficiency of the evidence to support the verdict of the jury.
The horses in controversy were in the brand of W. H. Burrows, the alleged owner. This was also the defendant’s brand, which he had used for 14 or 15 years. The defendant had stock, both horses and cattle, branded with this brand, and running in the range where these horses were running: He took the horses openly, claiming that they belonged to him. Bright, who had the horses in charge at the time of the taking, told the defendant that they belonged to Burrows, and that he had better not take them, and must not take them, without giving to him, Bright, a writing showing that he had taken them. Defendant said the horses were his property, and he would take them, and would give Bright the writing demanded, and did give it, and also told Bright that if any one inquired for the horses to tell them that he, defendant, had them, and told Bright his name, and- that he lived in the town of Pleasanton. Defendant took the horses to his home in Pleasanton, and kept them there until they were demanded by the owner. When the owner' called for them the defendant still claimed them as his property, but did not refuse to surrender them, and did surrender them. These are the facts of the case substantially as disclosed by the record.
It also appears from the record that the defendant made application for a continuance, and the court overruled his application, but no exceptions were taken to the overruling of the application, and without a .bill of exceptions thereto we would not revise the action of the court below upon that subject; but we are of the opinion that the application showed that there was testimony *491very material to defendant which was absent, and that he had used due diligence to obtain this testimony. We are not satisfied from the record in this case that the defendant has been properly convicted. We think the evidence is insufficient to establish a fraudulent intent on his part, in taking the horses, and that the court below should have granted him a new trial.
Reversed and remanded.