Three parties were separately indicted for the theft of the horse involved in this prosecution. One of them, to-wit, one Pedro Campo, was convicted of the theft of said animal, and on appeal the judgment of conviction in his case was affirmed by this court at its-last Tyler term. Our recollection is that the facts on that appeal were,, if not identically, substantially the same as submitted on this appeal. In this case this appellant has been convicted not of the theft per se of the-animal, as was Campo, but of a different offense—that is, of wilfully driving the animal from its accustomed range without the consent of the owner and with intent to defraud the owner thereof, as provided for in article-749 of the Penal Code.
In our opinion the facts proved do not warrant a verdict and judgment of conviction for wilfully driving an animal from its accustomed range as. provided by article 749 of the code, and that the court erred in submit-sing that issue to the jury upon the facts in the case. Defendant, if guilty at all under the facts, was either the guilty agent who took the horse himself, or he was guilty as a principal by acting with the thief Campo in the-taking. If defendant was guilty only as a principal from his connection and acting' together with Campo, then if Campo’s crime was theft of the-animal, defendant’s must have been the same; he could not, as a principal, be guilty of a different crime from that of the actual taker. Trial courts are not authorized to charge the jury on a phase of case not presented in the evidence. Spoonemore v. The State, 25 Texas Ct. App., 358.
We are of opinion that the court erred in refusing to permit the defendant to prove by Baylor, the sheriff, what his statements to the sheriff were relative to and explanatory of his, defendant’s, possession of the animal. Defendant had not been informed that he was suspected or charged with the theft of the horses until so informed by Baylor, and the statements; proposed to be proved were immediately made by defendant to the effect, that he had traded another horse to Campo for the alleged stolen horse. He also nroposed to prove by the same witness, in connection with these statements, that Campo was present and heard and assented to said statements. Taylor v. The State, 15 Texas Ct. App., 356; Roberts v. The State, 17 Texas, Ct. App., 82; Heskew v. The State, Id., 162; York v. The State, Id., 441; Moreno v. The State, 24 Texas Ct. App., 401; Field v. The State, Id., 422; Willson’s Crim. Stats., sec. 1300.
We are also of opinion that the ninth paragraph of the charge is obnoxious to the objection that it assumes as a fact that the evidence estab*347lished the theft and possession by defendant of another animal at the same time and place that the animal in question was stolen.
The judgment is reversed and cause remanded.
Reversed, and remanded..
Hurt, J., absent.