The defendant was indicted under section 4600 of the Code, for having sold and disposed of a certain bay horse mule after having mortgaged the said "mule to the mortgagee, with the intent to defraud the mortgagee. It was alleged in the indictment, that by mistake the mortgage described the-animal as a bay mare mule. Evidence was admitted to show the mistake, and the defendant was convicted. We think the court erred in admitting the evidence, and that the conviction was illegal. In a civil case, this evidence maybe admissible, but in a criminal case- we hold it is not, where the instrument in writing is the basis of the prosecution.
The judgment is, therefore, reversed.