Sitterlee was convicted of the theft of two horses, the property of V. Weldon. The prosecution relied for a conviction almost entirely upon the fact that defendant was in possession of the horses recently after they were stolen. Defendant, while in possession, gave a reasonable account of his possession, stating in substance that he had gotten the horses from one Perry Cox.
In reference to the question of recent possession, defendant by his counsel requested the court to instruct the jury as follows:
“Any explanation which the party in whose possession the property is found may give, at the time, as to the nature and extent of his possession and how he came by it, is admissible in evidence either for or against him; and if the explanation, when testified to before the jury, seems to them to be reasonable and *593is not shown to be false, the presumption against the accused from his possession is rebutted, and the jury are not justified in conviction without further evidence against him.”
These instructions were refused by the court upon the ground that they were upon the weight of the evidence.
When the State relies upon recent possession and the defendant gives a reasonable explanation of his possession, the case thus made is completely met, and, to make the recent possession available, the State must prove the explanation false. This being a just and legal principle, is it beyond the power of the court to give it, by proper instructions, in charge to the jury P We think not. It is true that a charge to the effect that recent possession of stolen property is prima facie evidence of guilt has been held, and we think correctly, a charge upon the weight of evidence. But the refused charge (the one under discussion,) does not intimate an opinion upon the weight of the evidence, but seeks to inform the jury of the rule, which is found in all of the texts written upon this subject.
Whether the charge in question was exactly correct or not, it certainly called the attention of the court to the subject, and made it necessary for the court to frame and submit one to the jury which contained the rule above alluded to. We are of the opinion that the court erred in not submitting to the jury a charge containing the principle indicated in the refused charge.
Defendant having met the case made by the State by proof of recent possession, by reasonable explanation, the State, to further rely upon recent possession, was bound to prove the explanation false. To effect this, Perry Cox was introduced by the State, and by him the explanation of defendant was shown to be untrue, thus rehabilitating recent possession with all of its criminative force.
Upon cross-examination, Cox denied that he had told any person that he had let defendant have the horses. Defendant proved by several witnesses that he had, and the State, by Wyatt Hanks, proved the following facts. Hanks says :
“ I was working at Perry Cox’s place about the last of September or first part of October last, when Sitterlee came there. Sitterlee came there one night after dark, stayed all night. I was working in the cotton field. Perry Cox went off about nine o’clock in the morning, was gone all day, and came home about sundown or a little before, and went out and brought up sheep. Sitterlee was on the place off and on all day; could not say he *594did not go off the place that day, but I saw him there several times during the day. Defendant came down to the cotton field where I was picking cotton several times that day. Perry Cox went off in the morning and did not return until about sundown. About nine o’clock that night, Perry Cox told me that he had let Sitterlee have two horses to go off on, and that he wanted me to go with him after them. I consented to go. Perry Cox, defendant and myself started out about nine o’clock to look for the horses. After going some distance from the house defendant said to me, •" Do not say anything about my being here, or what I am going to do.’ I suspicioned there might be something wrong, and made an excuse to stop. I told Cox and Sitterlee I wanted to fix something about my saddle. Cox and defendant rode on, and I returned to the house and went to bed about eleven o’clock that night. Cox and defendant came back to the house, and Sitterlee asked me why I stopped and did not go with them. I told Sitterlee I had got lost from them. Next morning Sitterlee was gone; don’t know what time he went off.”
It will be borne in mind that the horses were stolen about the last of September, 1882. The witness Hanks states that defendant, Cox and witness went, about the last of September or first of October last, at about nine o’clock at night, after the horses which he said he had let Sitterlee have. When we take into consideration the fact that Cox had told a number of persons that he had let Sitterlee have the horses, or two horses, his sworn denial that he had so told them, and the evidence of the witness Hanks, we are clearly of the opinion that he was an accomplice; if not, certainly there is sufficient evidence, tending to thus characterize him, as made it necessary for the court to give in charge Article 741 of the Code of Criminal Procedure. The evidence of the witness Cox was of the first importance to the prosecution. The case, as before said, made by recent possession being successfully met by the reasonable explanation of defendant, it was, owing to the meagreness of the other inculpatory facts, necessary for the State to prove the explanation false. This was done by Cox. How by him? The State by him was enabled to turn the almost evenly-balanced scales against the defendant. It is true that the law of Article 741 was not requested, nor was the charge of the court excepted to for its omission, nor did defendant embrace this omission in his motion for new trial. Still, we think it proper to call the attention of the court below to this matter. Believing that all of the law *595applicable to the whole case was not given in charge to the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered March 17, 1883.