A witness in behalf of the defendant testified positively that the defendant acquired the alleged stolen horse from one May, by trading to said May therefor a brown horse; that this occurred prior to the time when the witness for the State saw defendant in possession of the stolen horse; that May brought the said horse to a place where many people had assembled on the occasion of a horse race, and endeavored to bet the same on said race, and, failing in this endeavor, proposed to sell or trade said horse, and that defendant traded for the horse as aforesaid. There is no testimony directly assailing the credibility of said witness, or directly contradicting any of Ms testimony. It was corroborated to some extent by the testimony of another witness, who testified that he saw May at the race with a horse similar in description to the stolen horse, and heard May and the defendant discussing a trade about said horse.
To destroy the -effect of this defensive testimony, the- State proved negatively by several witnesses that they were acquainted with the property owned by the defendant,, ánd he did not own a brown horse at the time of the alleged trade, witMm *62their knowledge. It was also proved that on one occasion, while the defendant had possession of the stolen horse, he stated that he had got him “from a man over the river,” and on another occasion he stated that he had got him “from his uncle.” It is shown by the evidence that, if he got the horse from May, the first statement is true. As to the second statement, the evidence shows'it to be untrue. These statements were casually made by the defendant when he did not know that he was suspected of the theft of the horse, and without his right to said horse being called in question. Having been made under such circumstances, they can not be regarded as entitled to much consideration. Their criminative force is weak—too weak to overcome the presumption of innocence, when that presumption is supported by positive evidence.
Opinion delivered January 19, 1889.As to the negative testimony that the defendant did not own a brown horse at the time of his alleged trade with May, it is entitled to but little, if any, weight. . He may have owned such a horse without the knowledge of the witnesses. He may not have owned such a horse, and yet he may have traded such a horse to May. It was incumbent on the State, we think, to meet the defendant’s proof of a lawful acquisition of the stolen horse by more satisfactory evidence than was adduced. If May did not in fact trade the horse to the defendant, and did not have said horse in his possession at the race, it is reasonable to suppose that these facts could readily be established, as the race and the alleged trade took.place in the county of the prosecution, and many persons were present at the time and in the town where the trade is stated to have, occurred.
After a careful consideration of the evidence before us, we conclude that it does not sustain the conviction. It does not establish the guilt of the defendant to the exclusion of a reasonable doubt, in our minds, and we are unwilling to sanction the conviction upon the evidence.
The judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.