We think the evidence relating to the yearling was admissible, as tending to prove a fraudulent intent on the part of the defendant in taking the cow. It is permissible to prove an extraneous crime where it forms part of the res gestee of the crime charged, or where it tends to identify the defendant as the guilty party, or where it tends to prove the defendant’s motive or intent in committing the act of which he is accused. (Whart. Cr. Ev., sec. 31 et seq.; Galbraith v. The State, 41 Texas, 567.)
But the evidence about the yearling being admissible in this case only for the single purpose of showing the intent with which defendant took the cow, the court, in charging the jury, should have explained the purpose for which it was admitted, and should have limited its effect to this purpose alone. (Long v. The State, 11 Texas Ct. App., 381.) In the absence of such a charge the jury might have concluded that the defendant had stolen the yearling, and have convicted him of that theft—a theft with which he was not charged in the indictment; while they may not have been satisfied from the evidence, beyond a reasonable doubt, that he had stolen the cow, that being the theft charged in the indictment. (Whart. Cr. Ev., sec. 46; Com. v. Shepard, 1 Allen, Mass., 575.)
We agree with counsel for appellant in his proposition that a bill of exception may be taken at any time before the trial is concluded, and that the trial is not concluded before the verdict of the jury is returned into court and received. This proposition, we think, is fully sustained by Article 686 of the Code of Criminal Procedure, which provides as follows:
“ On the trial of any criminal action, the defendant, by himself or counsel, may tender his bill of exceptions to any decision, opinion, order or charge of the court, or other proceeding in the case, and the judg-e shall sign such bill of exceptions, under the rules prescribed in civil suits, in order that such decision, opinion, order or charge may be revised upon appeal.”
We do not think it is contemplated by the law that a defendant in a criminal trial desiring to except to the charge of the court, or to the action of the court m refusing a charge, should do so at the very time the charge is given or refused. To require him to do this would be placing before him the alternative of passively and silently submitting to what he conceives to be *363an error, or to take the risk of creating against himself a prejudice in the minds of the jury, by expressing a dissatisfaction with the law as given them in charge by the court. We think a proper and the usual practice is to allow the defendant to take his bills of exception to the charges of the court, and to the refusal of charges, after the jury has retired from the box.
Upon the subject of a reasonable doubt, we think the charge of the court was sufficient. We do not understand it to be required that this charge upon reasonable doubt shall be "given in regard to an affirmative, independent defense, as contended for by counsel, nor do we understand the cases cited by him as supporting that proposition. We think the demands of the law have been complied with when the jury are told that if, from the evidence, they entertain a reasonable doubt of the defendant’s guilt, they will acquit him. Where an offense consists of different degrees, a charge giving the defendant the benefit of a reasonable doubt between the degrees would be proper, and it would be error ordinarily in such case to refuse such a charge when requested; but, in a case like the present one, the court having given the defendant the benefit of a reasonable doubt with reference to the whole case, we do not think it was error to refuse the charges requested by defendant.
Objections are urged by appellant’s counsel to several other portions of the charge. Without entering upon an extended discussion of those objections, we will merely call attention to them with a view to a future trial of the cause.
1. If the latter portion of paragraph six of the charge, as to defendant’s knowledge of facts in relation to Jackson or his claim to the cow, as made it an act of bad faith on the part of defendant to use the authority of Jackson, etc., was justified by the evidence in the case, which we think is quite questionable, the jury should have been more fully instructed as to the nature of the facts, a knowledge of which on the part of the defendant would be sufficient to impute to him bad faith. We think this latter portion of paragraph six might well have been omitted altogether, it being supplied fully by other portions of the charge as to the intent of the defendant in taking the cow.
2, It is objected to the ninth paragraph of the charge, that it is upon the weight of evidence, and related to an immaterial fact, that is, the pa} ment to the owner of the cow of the money defendant had received for her, some two months after the alleged theft. We are of the opinion that this fact was too re*364mote from the act of taking the cow to have any legitimate bearing upon that act, or to shed any light upon that transaction, and that it should not have been noticed in the charge. While the first clause of the paragraph is correct law in the abstract, we think the latter portion of it, which instructs the jury that they may weigh this fact in considering the guilty or innocent intent of the defendant, is erroneous and should have been omitted. (Shultz v. The State, 5 Texas Ct. App., 390.)
3. In the twelfth paragraph the jury are instructed that possession of the cow recently after the theft, if stolen, “is not alone sufficient to warrant a conviction; such possession is only a circumstance to. be considered by the jury with all the other facts in evidence in the case; and if defendant, while in possession, made any reasonable and satisfactory explanation of such possession, unless shown to be false, it will rebut any presumption of guilt which you deem may arise from such possession,” etc. It is objected to this paragraph as above quoted that it is upon the weight of evidence, and that it confines the explanation of the possession to the time when the cow was in the actual possession of the defendant. We do not regard this charge as upon the weight of evidence. It is essentially different from the charges condemned in Williams v. The State, 11 Texas Court of Appeals, 275, and McWhorter v. The State, Id., 584, and Foster v. The State, 1 Texas Court of Appeals, 363, cited by appellant. We think, however, it was objectionable in -confining the explanation to the very time when defendant had possession of the alleged stolen property. In this case the evidence shows that the explanation of possession made by defendant was on the next day after he had sold and parted with the possession of the cow. Under the charge of the court above quoted, such explanation could not have been taken into consideration by the jury. (Anderson v. The State, 11 Texas Ct. App., 576.)
Because of the errors we have mentioned, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered June 6, 1883.