This Avas an action in trespass to recover da,mages for the talcing by the defendant of the plaintiff’s mules. The appellee Fulgham, aauis sued jointly Avith one Jamar. The jury returned a, verdict in favor of tire plaintiff against the defendant Jamar alone. On this AWdict judgment Avas rendered, from Avliicb the present appeal is prosecuted by the- plaintiff.
There Avas evidence tending to show that the United States government had lost mules which had either strayed oir been stolen, and that Fulgham, who Avas the sheriff of Madison county, had an arrangement or agreement Avith the United States officers whereby said ‘ *242Fulgham was to1 receive twenty-five dollars for every mule, found and identified by liim which had been lost or stolen; that Jamar went under the instructions .of Fulgham to look after and identify the lost mules; that Jamar located and found the mules in question here in Marshall county; that one: Holmes, an officer of the Federal government, on this information went with Jamar into Marshall county where he, Jamar, had located and found the: mules, and there said I-Iolmes, with Jamar, took the mules from the plaintiff Carter and: carried them to Huntsville.. The evidence on the pairt of the plaintiff tended to show that the mules in question wore his property. The; plaintiff offered to prove by John M. Cartier, who- was examined as a witness in behalf of plaintiff, that he, witness, heard Jamar at the' time he took one of the mules in question, tell the plaintiff that ho, Jamar, had examined this mule, but could find no' mark of U. S. on it. On motion of the defendant this testimony was excluded. In this the court was iu error. This declaration being made at the time of the taking of the mule, was competent and admissible as a part of the res gestae of the act of talcing.
Notwithstanding the positive denial on the part of the defendant Fulgham that he authorized the defendant. Jamar as his deputy and-agent to have anything to do in the actual flaking of mules found and identified by him, and notwithstanding his positive statement to the effect, that he instructed Jamar1 not to- flake on have anything to do with the talcing of any mules so found and identified by him, there, was evidence on the part of the plaintiff which tended to' show that the defendant Jamar in acting with and assisting Holmes, the United! States officer, in thetaicing of tire mules in! question, did SO' under' the direction of Fulgham, and from which evidence the jury might have, reasonably inferred thalil Jamar in aiding Holmes in the talcing of said mules was acting as Fulgham’s agent. The court, therefore, erred in giving- the general affirmative charge at the: request of the defendant Fulgham. The affirmative charge should never he given where the evidence *243is open to a reasonable inference of a material fact unfavorable to tibe right, of recovery by the party requesting the charge. — L. & N. R. R. Co. v. Lancaster, 121 Ala. 471; Alabama State Land Co. v. Slaton, 120 Ala. 259; Hall v. Posey, 79 Ala. 84.
There was no evidence in Hie case which authorized the recovery of punitive or exemplary damages. Consequently there was no- error in, the. giving of charges 1 and 2 at the request of the defendants.
The: suitl was for the recovery of damages for the wrongful taking of three, mules, the property of the plaintiff. Charge 3 is had, if for no other reason, on the ground of inconsistency. It hypothesizes the willingness of the plaintiff, in the talcing hy the defendants of the. plailnltiff’s mule, and at the same time the plaintiff’s objection to the taking. Besides, this charge ignores the evidence, as to the subsequent taking by the defendants, of the other mule, referred to in the charge as the “government mule,” which was left with plaintiff at the time of the taking of his mule. Or in other words, the change was calculated to lead the jury to the conclusion that if the jury should find from the evidence, thaltl two of the three mules sued for, belonged to the government and that no tresspass was committed in their taking, and1 that the third mule was plaintiff’s, still, he could noil recover.
Possession alone is sufficient to sustain the action of trespass as against a mere wrongdoer wlro is not the real owner’ of the chattel. — Tarry v. Brown, 34 Ala. 159. Charge 4 given at the instance of the defendant was opposed to tins view; besides it imposed upon the plaintiff too high a duty hy requiring him to satisfy the jury by a preponderance of the evidence. The giving of this cliai'ge was, therefore, erroneous.
If Jamar aided Holmes by locating and pointing out the mules for the purpose of their being taken, and for which he was to1 receive compensation, and the taking of the mules by Holmes was wrongful, then Jamar was a joint -tort-feasor. And if Jamar acted as the agent and under' the instructions of Fulghaan, then Fulgham would be equally guilty with. Holmes and Jamar in a wrongful taking.
*244The mere reiceaviiag of compensation by Fulgbam, without anything more, for mules recovered which were supposed to- havei been taken or stolen from the United States government, would ' not • of itself and alone amount to a trespass. However, it was competent to be shown in evidence as tending to. connect them with the tresspass.
There were a number of charges requested by the plaintiff ih writing which were refused to him by the court, and to which exceptions were1 reserved. We deem it unnecessary tio treat these refused charges separately, as what we have said we think is sufficient for the purpose of another trial. For tire errors pointed' out, the judgment, of the circuit court is reversed and the cause remanded.