On the trial of the case the State’s witness Rodenbaugh, to whom defendant sold the mule in question, *38testified: “ Defendant came to my house in Louisville about 11 or 13 o’clock on the 21st day of March, A. D. 188-1, and stayed until next morning. lie had with him a mule and horse. I gave him a buggy and $20 for the mule. He said he got the mule from one McBee, and, as I thought, out on Grand Prairie,” etc.
It is a general rule of law, now well settled in this State, that the statement of a defendant with regard to the character of his right to the property, when first found in possession of stolen property, and explanatory of his possession of it, if reasonable and probable, devolves the onus upon the State to show that such explanation is false. (Garcia v. The State, 26 Texas, 209; Galloway v. The State, 41 Texas, 289; Johnson v. The State, 12 Texas Ct. App., 385; Sitterlee v. The State, 13 Texas Ct. App., 587; Ross v. The State, 16 Texas Ct. App., 554; Perry v. The State, 41 Texas, 483.)
This rule of law was not presented in the charge of the court to the jury, and the defendant was entitled to have them instructed with regard to the law on this subject. It was a part of the law of the case. Defendant’s statement that he had gotten the mule from McBee was both natural, reasonable and probable, and it devolved upon the State to prove the falsity of the statement. Ttiis the State has only done inferentially, and by means of circumstantial evidence, and that, of itself, not of the most cogent character. McBee, the party from whom he stated he had gotten the mule, and who could have proved or disproved the fact, as the case may be, by positive testimony, was neither a witness in the case, nor is his absence accounted for. It is a rule of evidence, wTell settled, that circumstantial testimony cannot be resorted to where direct and positive proof is attainable; and that secondary evidence cannot be resorted to where it is disclosed that there is better and more satisfactory evidence of the fact sought to be established. (Cotton v. Campbell, 3 Texas, 493; Porter v. The State, 1 Texas Ct. App., 394; Stewart v. The State, 9 Texas Ct. App., 321; Hunter v. The State, 13 Texas Ct. App., 16; Wyers v. The State, 13 Texas Ct. App., 57; Baldwin v. The State, 15 Texas Ct. App., 275, and Dixon v. The State, 15 Texas Ct. App., 480.)
For the error in the charge of the court, as above pointed out, and because we believe that the evidence on which this conviction was had was insufficient, and that the court should have granted a new trial, the motion of appellant for a rehearing is granted, and the judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.
[Opinion delivered April 18, 1885.]