When defendant’s right to the yearling in controversy was first challenged, one Lee Windham was present, and Lee Windham testified on the trial that defendant called upon him to state to Smith, the person who was questioning defendant about the yearling, what kind of a yearling it was that defendant and witness had killed, and that witness told Smith, in defendant’s presence, the kind of yearling, describing the same minutely, and that it was defendant’s yearling, and not the yearling inquired about and claimed by said Smith.
Defendant requested a special charge as follows: “If you find from the evidence that the defendant took the animal mentioned in the indictment, and if you further find that the first time the defendant’s right to said animal was called in question he gave an explanation of such possession, and that such explanation was reasonable, then you are instructed that it devolves upon the State to prove such explanation false, and a failure to do so will entitle the defendant to an acquittal.” This charge was refused, and the *423court gave no charge whatever upon this phase of the case, and the defendant excepted to the court’s charge in this respect.
The special charge requested is certainly correct in principle. (Miller v. The State, 18 Texas Ct. App., 34, and cases therein cited.) And in our opinion it was demanded by the evidence in the case. That the explanation of the defendant’s possession of the yearling in controversy was made by the witness Lee Windham does not make it any the less the explanation of the defendant. It was made at defendant’s request and in his presence, and was sanctioned by him. It would have been evidence against him, and should be evidence for him. It was in law his own statement and explanation. (Garcia v. The State, 26 Texas, 209.) In view of the evidence in the case the explanation was reasonable. There was positive evidence that the yearling which the defendant killed, and which he was convicted of stealing, was his own property.
We are clearly of the opinion that the court erred in failing to instruct the jury as requested in the said special charge, and because of this error the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered November 25, 1885.]