I. It is objected to the indictment that it does not sufficiently allege the ownership of the horse stolen. This objection is not well taken. It is alleged that the horse was taken from the possession of “ Jesse French, the owner thereof.” Although this is not the usual form in which the ownership of property stolen is alleged, still it is substantially sufficient.
II. Whilst the defendant’s application for a continuance was in strict compliance with the statute, and showed that he had used due diligence to obtain the testimony of the witness MacWright, still we cannot say that it was error to refuse it, because, upon consideration of the evidence in the case, it cannot be said that the testimony of said witness, if it had been produced on the trial, was probably true. It was contradicted by the defendant’s own statements.
III. This conviction is based upon circumstantial evidence alone. Wo person saw the defendant take the horse, nor did he confess that he had stolen him. He was found in possession of the horse on the same night, perhaps, that it was stolen, and within two and
*476a half miles from the residence of the owner thereof, but he claimed at that time to have purchased the horse in Austin. He afterwards claimed to have purchased the same near McDade, a town near the place where the animal was stolen.
While the evidence of defendant’s guilt is very cogent, still it is all circumstantial, and in our opinion the charge upon circumstantial evidence requested by defendant’s counsel was not only warranted, but was imperatively demanded as a part of the law of the case; and the refusal of the trial judge to give said charge, or a similar one, was such fundamental error, under the repeated decisions of this court, as requires a reversal of the judgment.
Therefore the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered January 31, 1885.]