In the charge of the court the jury were instructed as follows: “Evidence has been introduced of the loss of other animals from the range about the time this mare in question was missing therefrom. You will consider the loss of other animals from the range only so far as this evidence may tend to develop the transactions out of which this prosecution has grown, and may tend in your opinion to identify the mare in question.” This instruction was excepted to by the defendant upon the ground that it was unwarranted by any evidence adduced on the trial, and the bill of exception, duly authenticated by the trial judge, recites that there was no such evidence in the case, but that the evidence referred to in said charge was evidence which had been introduced in the trial of another cause before said court.
*194Opinion delivered February 9, 1889.In the statement of facts there appears evidence which would warrant the charge excepted to, but, as the bill of exception expressly states that no such evidence was adduced on the trial, such statement must control, and we must hold that there was no evidence to warrant the charge. (Willson’s Cr. Stat., sec. 2369.) There being no evidence to warrant such charge it was error to give it. (Willson’s Cr. Stat., sec. 2337.) And the error having been excepted to, the conviction must be set aside, although the error may have been harmless. (Willson’s Cr. Stat., sec. 2363.) The judgment is reversed and the cause is remanded.
Reversed and remanded.