When Blackwell, the owner of the alleged stolen horses, challenged, the defendant’s right to them, defendant explained his possession of them by saying'that he had been author*319"ized by one Denham to take up horses of the description of these; and that he had taken up these horses believing them to be Denham’s; that Denham lived in Lavaca county, and claimed to have lost horses in that neighborhood suiting the description of Blackwell’s horses, and promised to pay defendant for getting them up. This was defendant’s explanation of his possession of the horses, made •within a few hours after he had taken them up, and when he was first called upon to explain his possession.
In addition to this explanation he proved by his wife that Denham had employed defendant to get up horses similar in description to these. It was also shown by the evidence that he got up the horses -in daylight and drove them through the streets of Cuero to his pen situated in said town, and after penning them caught and rode one of them to a public house in said town, and there called upon the State’s witness Cook to examine the horse, and give his opinion as to the value thereof. He made no effort whatever to conceal his possession of the horses, and when Blackwell, the owner, claimed them, he at once turned them over to him.
In view of this evidence we think it devolved upon the State, relying as it did upon the defendant’s recent possession of the property to establish his guilt of its theft, to prove the falsity of his explanation of such possession. His explanation is, we think, a reasonable one, and sufficient to rebut and destroy the inculpatory circumstance of recent possession. We are further of the opinion that the State failed to show the improbability or falsity of such explanation. It is true that an effort was made in this'direction, by the production of evidence tending to show that at the time the defendant took the horses he knew them to be the property of Blackwell, and that he stated to a witness that he had traded for one of the horses. When this evidence is closely scrutinized it will be found to be too uncertain and indefinite to be relied upon to establish guilt, and it does not, in our opinion, disprove or render unreasonable or improbable the explanation made by the defendant.
Considering, in connection with the evidence adduced on the trial, the fact that the defendant applied for a continuance of the cause for the want of the testimony of Denham, and that of two other witnesses who were proved to have been present when Denham described the horses to defendant, and employed him to get them up, we are of the opinion that the court should have granted the defendant’s motion for a new trial, notwithstanding the court "did not err in refusing the application for a continuance upon the ground that sufficient diligence to obtain the testimony of the ab*320sent witnesses had not been used. (Stanley v. The State, 16 Texas Ct. App., 392.) It is shown from the evidence adduced on the trial that the testimony of the absent witnesses is not only material but that it is probably true.
[Opinion delivered February 17, 1886.]We are of the opinion that the evidence demanded a charge from the court of the law relating to a voluntary return of stolen property. No such charge was given. (Penal Code, art. 738; Bird v. The State, 16 Texas Ct. App., 528.)
The charge upon the reasonable doubt should follow the statute (Code Crim. Proc., art. 727), without any attempt at amplification or explanation, and efforts to elucidate the meaning of the statute are unnecessary and mischievous. (Bland v. The State, 4 Texas Ct. App., 15; Fury v. The State, 8 Texas Ct. App., 471.) In this case the learned judge, after charging the law of reasonable doubt substantially in the language of the statute, proceeded to explain that moral certainty of guilt was the certainty required to produce conviction, and then defined the meaning of moral certainty. This was unnecessary and erroneous.
For the reasons and because of the errors we have mentioned, the judgment is reversed and the cause is remanded.
Reversed and remanded.