This is a conviction for the theft of a colt, the property of Mrs. Margaret Squires, alleged to have been taken from the possession of James A. Baker, who was holding the possession for the owner.
The appellant’s brand was Y with a bar under it. It appears from the record that the colt was found on the range on the west side of the San Marcos river, near olfl man James Hodges’s place. The colt, when found, was with some eight or ten colts and fillies. Some of these were branded OL, some were branded in the U (U-bar), and one had the hatchet brand on it. The brands were fresh, and seemed to have been placed upon the animals about one month before. All of the stock were driven to the town of Gonzales and placed in a stock pen, at which place the respective owners proved property and took the stock.
Upon the trial, when the State proposed to prove that other stolen stock was found at the same time and place with the colt, and that said stock was freshly branded, and that the owners claimed and took the same, the defendant objected because not shown to have been taken at the same time and place, etc.
Under the facts of this case, the question is, was this evidence competent and admissible?
In Gilbraith’s case, 41 Texas, 567, the defendant was charged with *267the theft of a bull, the property of one Meyers. Upon the trial, over the objections of the defendant, the State proved that the hide of the bull was sold to one Taylor, a butcher, and that when the defendant brought the bull hide to his shop he also brought a red hide branded SS; that on the next day Meyers and Josh Bussell came to his shop and claimed and took the hides; that Bussell identified the red hide and claimed that it had been taken from his animal, and that his brand was SS.
Justice Moore held this evidence inadmissible, and in discussing the question stated this to be the rule: “ Such evidence, however, is admitted mainly when it is necessary to establish identity in developing the res gestas, or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial, or when the intent with which a particular act is done may be the gist of the offense.” The fact that Gilbraith had sold to Taylor a hide from the animal of Bussell at the same time that he sold the Meyers hide, and the further fact that the defendant had stolen the Bussell animal or hide, were held not to serve in any way to identify the thing stolen, or to connect the defendant with the theft of Meyers’s bull, nor to form a part of the res gestee. Bor did these facts form links in a chain of circumstances proving the defendant’s guilt of the theft charged.
'In Ivey’s case, 43 Texas, 425, wherein one Ezelle was jointly indicted with him for the theft of a steer, but had severed, the evidence went to show that the alleged stolen animal was found with three or four others which were identified, in Butherford’s pasture, about five miles north of Austin, which pasture was rented by Ezelle, and that the three or four others were also stolen property, and that they were placed in the said pasture at the same time that the animal for the theft of which Ivey was on trial was placed there. The defendant Ivey objected to the testimony as to the two or three other stolen animals which were found in the said pasture, at the same time that the alleged stolen animal was found, but the objection was overruled by the court, and the testimony was admitted.
In passing upon the competency of this evidence, Judge Beeves says: “It is objected that the court erred in permitting the State to prove that the other stolen stock, taken from the same neighborhood, were found in Butherford’s pasture, under the control of Ezelle. To make this evidence admissible as against Ivey, it must be shown that the stolen stock and the steer in question were taken at the same time and formed but one transaction, and that Ivey’s acts were such as to show a guilty connection with Ezelle when it *268was so taken, or while it was under his control. The rule is diffe - ent when acts are separate and unconnected.”
This much is extracted from the above quotation: That the animals must be taken at the same time and form but one transaction. How, it is not stated in the opinion of Judge Beeves for what purpose the evidence would be admissible if the animals had been taken at the same time so as to form but one transaction. But evidently if the defense had relied upon mistake or claim of property, this evidence would have been admissible to refute such a defense. And under such defenses, this evidence would be admissible whether the animals were taken at the same place and time or not. Let us suppose that the proof shows that the defendant went out upon the prairies and gathered up the cattle belonging to several parties, and that the cattle, when taken, were from one to six miles apart, and that they were driven out of their range, say into an adjoining county. How, if he should be indicted and tried for the theft of one of the cattle so taken with the others, and, to prevent conviction, should rely upon a mistake or a claim, or the want of fraudulent intent, this evidence would be admissible, though, as shown by this illustration, the cattle were not taken precisely at the same time and place.
In Long’s case, 11 Texas Ct. App., 381, proof that other stolen cattle were in the bunch with that charged to have been stolen ■was admitted for the purpose of connecting the defendant with the possession of the cow charged to have been stolen. To identify the bunch of cattle with which the cow was driven to Seguin, evidence that other cattle from the same range were taken at the same time was held properly admitted.
In Jones’s case, 14 Texas Ct. App., 35, the horses were all taken about the same time or same night and from the same neighborhood. In fact, in one sense the taking formed one transaction, though not the same offense. This being the case, the evidence of the theft of other horses besides that charged in the indictment was held admissible.
In the House case, 16 Texas Ct. App., 31, proof that other cattle were branded and sold by the defendant at the same time was held competent upon the grounds, 1, to identify the cattle; 2, to connect the defendant with the transaction; 3, to show intent.
We have thought proper to allude to the above cases for the purpose of arriving at a rule by which to determine when such evidence is admissible. And we are of the opinion that the rule as stated by Judge Hoore in Gfilbraith’s case, 41 Texas, 567, and reiter*269ated in the Long and House cases, supra, is correct. The great difficulty is to determine when the facts of a case are such as to admit such evidence; the general rule being against the competency of this character of evidence.
But let us return to the case in hand.
1. The identity of the transaction is not shown by this evidence.
2. This evidence does not tend to explain the intent with which the defendant took the colt in controversy.
3. It does not form a link in a chain of circumstances which tends to fasten guilt upon the defendant. But, had this been a prosecution for illegally branding the animal, the evidence would doubtless have been admissible to show motive or intent on the part of defendant.
Viewing the question from the whole record, this evidence tended to prove that the defendant stole the colt only because it tended to show him to be a thief. The proposition - deduced from this evidence is as follows: Defendant stole eight or ten other horses; therefore he stole the gotch-eared filly of Mrs. Squires. At what time and from what other place these other stolen horses were taken, the record is perfectly silent.
But it may be urged that the evidence tends to show that all of the colts and fillies were branded at the same time. This all may be true, but certainly this does not prove that they were taken at the same time, or near the same time, or from the same neighborhood.
To conclude, it is evident that the fact that other colts and fillies were with the colt in question and lately branded in the defendant’s brand, when the colt was found, furnishes no evidence which can legally bear upon any issue raised in this case. A different state of circumstances may require this evidence. We are of the opinion that the court should have sustained the objections to this evidence.
Again, let us suppose the evidence to have been admissible, still it was very clearly the duty of the trial judge to have instructed the jury as to the purpose of such proof.
Because of the admission of the evidence above discussed, and because the court, in its charge to the jury, failed to explain the purpose of such evidence, the judgment is reversed and the cause remanded.
Seversed and remanded.
[Opinion delivered May 20, 1885.]