This conviction is clearly against the evidence and the charge of the court. When the defendant was found in possession of the alleged stolen mare, he gave a reasonable explanation of his possession, and on the trial proved said explanation to be true. He took possession of the mare for and at the instance of another person, said mare being in the brand of such other person. He took, kept and used the mare pfiblicly, and asserted no claim to her, but claimed her for the person who had authorized him to take her up off the range. Instead of a fraudulent intent on the part of the defendant in taking the mare being shown, the evidence clearly disproves such intent.
The court erred in overruling the defendant’s motion for a new trial, not only because the evidence was insufficient to warrant conviction, but because the court erred in refusing to give the special instruction requested by the defendant as to the voluntary return of the mare to the owner before any prosecution for *596the theft of such mare had been instituted. Such charge was demanded by the evidence.
Opinion delivered June 16, 1888.Because of the errors mentioned, and because the conviction is without evidence to support it, the judgment is reversed and the cause is remanded.
Reversed and remanded.