There were two theft counts contained in the indictment, the first alleging that the property was taken from the possession of Henry Randolph, and the second that it was taken from the possession of Joe Gernigan. In the verdict the defendant was found “ guilty of theft as charged in the indictment,” and the judgment is a general one for “theft of a horse as found- by the jury.” It is insisted that the verdict of the jury failing to state upon which count of the indictment the defendant was convicted is reversible error, and we are cited tó a number of cases in which it was held that the judgments should *183be reversed because of variance between the allegations and proof as to ownership, or rather possession of the party from whom the property was taken. These cases do not apply to the question here raised. It is not a question of variance. Both counts were good, and "under the practice in this State a general verdict responds sufficiently to an indictment containing two good counts, and is likewise sufficient under an indictment containing one good and one bad count,"inasmuch as it will be assignable to the former.” Boren v. The State, 23 Texas Ct. App., 28; Code Crim. Proc., art. 712. There are, it is true, certain well defined exceptions to this rule, as when the counts of an indictment charge an offense which is a felony, but which includes other offenses which are misdemeanors, and all the offenses covered by the indictment are submitted to the jury by the charge of the court, a general verdict of guilty applicable to either of the offenses is uncertain and will not support a judgment. Guest v. The State, 24 Texas Ct. App., 530; Hickman v. The State, 22 Texas Ct. App., 441.
No. such uncertainty exists as to the matter here presented, and if either of the counts are sustained by the proofs the' general verdict and judgment will be applied to and be held sufficient under that count. The evidence shows that the horse was the property of Gernigan, who was the general owner, but was taken from the possession of Randolph, who was in possession of and holding the same for Gernigan. This phase of the question of ownership and possession was correctly presented in the fifth clause of the charge of the court, which it is strenuously insisted was erroneous. The charge was directly applicable to the facts adduced in evidence to support the first count of the indictment and was the law of the case as to said count. Willson’s Crim. Stats., sec. 2335; Chamberlain v. The State, 25 Texas Ct. App., 398.
Under the facts of the case we are of opinion that the charge of the court sufficiently presented the law relative to the power of attorney from A. 0. Edwards to Dixon English introduced in evidence by the State, and that no error is made to appear in the court’s refusal of defendant’s special requested instruction on this phase of the case. Said special instruction was upon the weight of evidence. This power of attorney purported to have been executed and acknowledged on the 16th day of August, 1887. The horse was alleged to have been stolen in June, 1889. The indictment was returned the 10th day of February, 1890, and said power of attorney was not filed and recorded until the 15th day of February, 1890, five days after the finding and presentment of the indictment.
Upon the phase of the case tending to establish that defendant was a hired hand of Dixon English we are of opinion that as given the charge of the court sufficiently and pertinently presented the law, and that the court did not err „in refusing defendant’s special instructions on this branch of the case.
*184We will not discuss the other several interesting questions presented with reference to defendant’s application for continuance and the organization of and conduct of the jury, since these are questions not likely to arise upon another trial.
There is one material error submitted which, in our opinion, requires that the conviction should be set aside and a new trial awarded appellant. After the evidence for the State and defendant had been introduced, all of which tended to show that if the animal in question had been stolen, that it was stolen from its range in Jones County, in June or July, 1888, the State, over objection of defendant, was permitted to prove by one Killeen that an animal belonging to his father was stolen from its range in Fisher County, some eight and a half miles from where the Randolph horse was stolen, in the month of September, 1888, which mare one McAdams testified he had purchased from defendant and his brother in Motley County in June, 1889, about the same time they sold the animal in question. Defendant’s objections to this testimony was that the two animals were not taken at the same time and place, that the two transactions were separate and independent, and that the evidence was not in rebuttal to any evidence offered by defendant.
As tending to establish identity in developing the res gestes, or to prove guilt by circumstances connected with the theft, or to show the intent of the accused with respect to the property described in the indictment, it is competent for the State to prove the theft by defendant of other property at the same time and place of the theft in question, but it is not competent to prove a distinct theft committed by defendant at another time and place. “ Such evidence does not tend to serve legitimately to throw any light upon the particular theft for which defendant is on trial.” Williams v. The State, 24 Texas Ct. App., 412; Neeley v. The State, 27 Texas Ct. App., 315.
For the admission of the illegal evidence as above shown, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.