Over objections of defendant, the State was permitted to prove by two witnesses that they saw the de*511fendant in Brenham on the night of January 31, 1887, and that on that night a horse was stolen in Brenham from one of said witnesses. This testimony was offered and admitted as rebutting testimony, and was objected to by defendant, 1, because the same was irrelevant and impertinent; 2, because the defendant’s whereabouts on January 31,1887, was not an issue in the case; 3, defendant was not on trial for theft of the horse said to have, been stolen on that night from Becker, one of said witnesses, and said evidence was calculated to prejudice the defendant, etc. These objections to said testimony should, we think, have been sustained.
We can not perceive .that it was relevant, even in a remote degree, to any issue in the case, and it was not in rebuttal of any evidence introduced by the defendant. The theft for which the defendant was on trial was committed on the night of January 19, 1887, in Burleson county, and the defendant, having the stolen horse in his possession, was in Brenham, Washington county, on January 20, 1887, at the house of Maria Williams, where said horse was found and recovered February 4, 1887, by the officers of Washington county. The fact that defendant was in Brenham on the night of January 31, 1887, throws no light whatever upon the transaction, either as 'to the original taking of the horse in Burleson county, or the removal to, and possession of the same, in Washington county. It was not claimed by defendant that he was not in Brenham on the said night, and whether he was there or elsewhere could have no bearing upon the issue of his guilt of the theft for which be was being tried; for the crime had been committed and was in all things complete prior to that time. We can imagine no purpose for the introduction of this evidence, except that of raising a suspicion against the defendant that he stole Becker’s horse. It could certainly have no other effect in the consideration of the case by the jury. It is reasonable to conclude that it did have this effect, and did prejudice the defendant in the minds of the jury, causing them to assess against him the maximum punishment prescribed by the law for this offense.
It was error to admit the testimony of the witnesses Boyd and Langhammer that defendant, when asked to tell his name, refused to do so. This refusal to tell his name was after he had been arrested, and while he was in the custody of an officer, and it was not shown that it was admissible evidence under any of the exceptions of the statute. (Code Crim. Proc., art. 750; Nei*512derluck v. The State, 21 Texas Ct. App., 320; Nolen v. The State, 14 Id., 474.)
Opinion delivered June 11, 1887.As to the circumstances under which he was arrested, and his conduct on that occasion prior to his arrest, we are of the opinion that the court did not err in permitting the same to be proved. This was testimony tending to show that defendant had committed a crime, and, in connection with other testimony adduced on the trial, afforded a circumstance which pointed to the theft with which he was charged as the crime which he had committed, and from the consequences of which he was endeavoring to escape.
In proving the theft of the horse named in the indictment, the State proved that another horse had been stolen at the same time and place. This being the evidence, the court should have explained in its charge to the jury the purposes of such evidence, that is, that it was admitted for the purpose of establishing idendentity in developing the res gestae, or to prove the guilt of the accused with theft by circumstances connected with the theft, or to show the intent with which the accused acted with respect to the property for the theft of which he was on trial, (Alexander v. The State, 21 Texas Ct. App., 406), and that they could not convict the accused for the theft of any other horse than that named in the indictment. The court omitted to give such an instruction, and such omission was error. In other respects we find no material error in the charge of the court.
Because of the errors pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.