Defendant, on the day he was first seen in possession of the mares, explained his possession by stating that they were sent from Mexico to defendant’s mother by her husband, one Ortez, for the children of said Ortez; but they were in the brand of said Ortez, and that they were brought from Mexico by Bernardo Ortez, the father of said grantor. On the trial of the case the State proved said explanation, but failed to prove that it was false. On the other hand, the defendant proved that Bernardo Ortez brought and delivered to one Osten, for the use and benefit of defendant’s mother and children, certain mares similar in description to those sold by defendant to Tullos, and executed therefor a bill of sale, which was read in evidence, and defendant’s mother testified that the mares sold by the defendant were some of the same which were brought to her by said Bernardo Ortez, and that she directed the defendant to sell them to said Tullos.
There was no testimony directly rebutting or contradicting defendant’s explanation, or the testimony in support thereof. There is nothing in the evidence which shows his explanation to be unreasonable or probably not true. Besides the fact that he had possession of the mares and sold them, there is no other fact of any importance in evidence even tending to establish his guilt of the theft of them. We are of the opinion that the conviction is not sustained by the evidence.
The judgment is reversed, and the cause remanded.
Reversed, and remanded.