Appellant and one Willis were jointly indicted for the theft of one head of cattle, the property *581•of one W. T. Wright. They severed on the trial, and each was separately convicted, and both cases are on appeal to this court.
By the testimony of W. G-. Wright, the alleged owner, it appears that his home was in Taylor county, and that the range of "the animal was on Elm creek, one and a half miles west of Abilene, in Taylor county. He had not seen the cow for three months, and did not know she had been stolen until he was notified. He found her in and received her from the possession ■of the sheriff of Jones county, who had taken her from the possession of the appellant and others in the latter county. There is no testimony, either positive or circumstantial, going to show that the defendants, or any one with whom they might be supposed to have been acting in concert, were ever seen taking or in possession of the cow in Taylor county. On the contrary, the first time the defendants are shown in the possession of, or as having any connection with the animal, is at the appellant Boyd’s pen, some twenty miles from Anson, in Jones county, where they are shown to have changed the marks and brands upon it. At most, this evidence makes the case one of recent possession.
Recent possession is not positive evidence of theft—it is but a •circumstance tending to establish it. A case dependent alone upon recent possession is a case of circumstantial testimony, and the law presenting that character of case should be submitted to the jury; because, whilst under certain conditions recent possession will support a conviction for theft, it is, in connection with such other conditions, only one of the circumstances from which the guilt is inferred. (Perry v. The State, 41 Texas, 484; Faulkner v. The State, 15 Texas Ct. App., 115; Lehman v. The State, 18 Texas Ct. App., 174; Sullivan v. The State, Id., 623; Scott v. The State, 19 Texas Ct. App., 325; Ayres v. The State, 21 Texas Ct. App., 400; Willson’s Texas Crim. Laws, sec. 1299; Schultz v. The State, 20 Texas Ct. App., 308.)
Being a case of circumstantial evidence, it was error in the ■court to omit to charge, and was error to refuse the special requested instructions to the jury, with regard to the law governing such character of cases. With regard to recent possession, in general terms the rule is that if a party in whose exclusive possession property recently stolen is found, fails reasonably to account for his possession when called upon to explain, or when the facts are such as to require of him an explanation, the presumption of guilt -arising from recent loss and possession will *582warrant a conviction, without the necessity of further proof. (Robinson v. The State, 22 Texas Ct. App., 690; Willson’s Texas Crim. Laws, secs. 1299, 1300.)
In such a case, however, it should be left to the jury, under-proper instructions, to determine the question of recent possession, and they should be explicitly instructed that, unless they found such possession was recent, they would indulge no presumption of defendant’s guilt because of the fact of his being found in possession of the property. (Bragg v. The State, 17 Texas Ct. App., 219; Curlin v. The State, 23 Texas Ct. App., 681; McCoy v. The State, 44 Texas, 616; Willson’s Texas Crim. Laws, sec. 1306.) The court omitted any charge upon this branch of the law of the case, and refused a special requested instruction calling attention to the matter.
As stated above, there was no direct evidence as to the original taking of the animal. It seems quite clear, however, that-the defendants had every reason to know and believe that the cow was stolen when they changed her mark and brand, and when they received her into their possession; and it does appear to us that much trouble encountered by the prosecution might-have been, avoided by trying the defendants as receivers of stolen property, under article 743 of the Penal Code, or perhaps better still, for altering and defacing the mark and brand, as provided in article 760, Penal Code; both of which offenses are punishable as is theft. The prosecution, however, being for theft, and it being absolutely essential in support of that charge-to connect the defendant with the original taking, to warrant his-conviction, without such proof of connection any subsequent, guilty connection with the stolen animal, such as a receiver of the same, or as the party who had illegally altered the mark and brand, would not be sufficient to warrant the conviction for theft.
“To inculpate a defendant as a principal offender in the crime of theft, the State must show that he had some connection with or complicity in the taking of the property. It does not suffice-to prove that, subsequently to the taking and without complicity therein, but with knowledge that the property had been stolen, he aided the taker to dispose of it.” (Cohen v. The State, 9 Texas Ct. App., 173; McAfee v. The State, 14 Texas Ct. App., 668; Tucker v. The State, 31 Texas Ct. App., 699.)
Without a very clear and positive understanding of this principle of law, it is manifest that an ordinary jury would be misled *583as to the character and weight to be attached to the subsequent inculpatory acts of defendant, though not connected with the original taking. Appreciating this danger, and to avoid it, defendant requested a special instruction, which the court refused, and which was in effect that, “before the jury can convict defendant, they must believe beyond a reasonable doubt that he is guilty of the original fraudulent taking, and any subsequent connection after the taking would not be theft, either in good or had faith; and if the jury believed that the defendant purchased the cow from Mixon or any other party, after the fraudulent taking, either in good or bad faith, he is not guilty óf theft.” (Clayton v. The State, 15 Texas Ct. App., 348; Barrett v. The State, 18 Texas Ct. App., 64; Phillips v. The State, 19 Texas Ct. App., 159; Morrow v. The State, 22 Texas Ct. App., 240; Curlin v. The State, 23 Texas Ct. App., 681.) It was error to refuse this instruction under the circumstances of the case. (See Willson’s Crim. Laws, sec. 1306.)
As to the testimony of the accomplice Mixon, we are of the opinion the charge was not sufficiently explicit upon the character of the corroboration. Such testimony must be corroborated not merely so as to show that such a crime as the one charged was committed, but the defendant’s complicity in the crime committed. (Code Crim. Proc., art. 741.) The material matter in this case was the original taking—in other words, the theft of the animal—and, whilst it may be that the subsequent acts of defendant would tend in some degree to show complicity in the original taking, and whilst as to these acts the accomplice testimony was corroborated, these acts, as we have seen, did not prove the original taking, and under the circumstances developed in this case they tended very slightly, if at all, to prove it; because, whatever of corroboration there is in the evidence is alone as to matters occurring subsequent to the crime charged, that is, subsequent to the original taking or theft. As to the original taking, the accomplice himself professed to know nothing of it. It is a serious question, which we do not feel called upon now to answer, as to whether the corroboration in this case, is of a character such as is contemplated by and would be held sufficient under the statute as to the main fact charged in this case. (Roach v. The State, 8 Texas Ct. App , 478; Harper v. The State, 11 Texas Ct. App., 1; Dunn v. The State, 15 Texas Ct. App., 560.) It certi. to.ly is not sufficiently conclusive, without proof aliunde of the *584main fact—which fact, it' is true, may be established by the recent possession, unexplained, of the stolen property.
Opinion delivered January 28, 1888.For the errors we have pointed out, the judgment will be reversed and the cause remanded.
Reversed and remanded,