It was proved on the trial by the State that about the same time that Fondren’s mare, the animal named in the indictment, was stolen, other horses were stolen from the same neighborhood, and that these other horses were recovered by the owners at the same time and place that Fondren recovered his mare. This evidence required from the court a charge to the jury explaining and limiting the purpose for which it was admitted, and the court, having omitted to give such charge, committed error for which the judgment must be reversed. (Wheeler v. The State, ante, 598.)
It was error for the court to instruct the jury as it did in relation to explanations and declarations made by defendant in relation to his possession, etc., of the alleged stolen animal. There was no evidence to warrant such instruction. No such declarations or explanations were in evidence, and a charge should be confined to the facts in evidence. (Boddy v. The State, 14 Texas Ct. App., 528.)
Considering defendant’s application for continuance in connection with his motion for new trial, we think the court should have granted a new trial. The evidence of the absent witnesses, , as set forth in the application for continuance, would certainly be material to the defendant, and, in view of the evidence adduced on .the trial, it appears to us probably true. Reasonable diligence on the part of the defendant to obtain the testimony of said witnesses is shown in the application for continuance.
Because of the errors mentioned, the judgment is reversed and the cause is remanded.
Reversed and remanded.