This conviction was for the theft of a horse, the alleged property of Luis Telles. The Assistant Attorney General has confessed error in the case. When found in pos*592session of the horse in question, defendant and two other persons were present, and near by were four horses grazing.
Trinidad Buitran, Rosalio Martinez and appellant comprised the party supposed to be in possession of the horses. When the officer and his posse rode up they were asleep on the ground. The prosecutor states: “Defendant gave an account of his possession of the horse. He said that Rosalio Martinez loaned him the brown horse which he, defendant, had been riding, and that the others were in the possession of Rosalio. Rosalio was present when defendant said this, and remained silent. We arrested Rosalio as a thief. Defendant said that he was innocent of the affair.” Witness N. Martinez stated: “When we arrested them defendant was lying down. He got up and shook hands with me. He did not attempt to escape. I took him aside and told him to tell me who had the horses and he told me that Rosalio Martinez was the one who had the horses; that he claimed to be the owner of the horses, and that he, defendant, was innocent of the affair, and asked me to let him go.”
That Martinez loaned the horse to defendant was not only alleged by him when first found near the horses, but this fact was strongly corroborated by the testimony of Trinidad Buitran who was one of the party found near the horses, and who-was arrested with defendant and Martinez. Indeed there is no inculpatory fact against defendant that is not explained by his statements made when first charged directly with the offense; and, instead of the other facts showing his explanation to be false, they very strongly corroborated his statement. By his explanation and the testimony of Trinidad Buitran every fact of apparent guilt is made to consist with his innocence. We therefore conclude that the verdict is against the evidence.
Appellant, when first called upon, having given a reasonable explanation of his connection with the stolen property, it was necessary for the court to instruct the jury upon this subject.This was done by giving the following charge: “If you believe from the evidence that the animal had been recently stolen, and defendant was found in possession of the same, and, when his right to the possession of said animal was challenged, he gave a reasonable account thereof, consistent with his innocence, it devolves upon the State to show that it is untrue.” This may be correct; but, proceeding upon this subject, the charge is: “If, however, when his possession was first challenged, he failed to reasonably and satisfactorily account for *593his possession thereof, you will find him guilty as charged in the indictment.” This is unquestionably erroneous; it is not the law. The accused may fail to explain his possession, but certainly he would have the right to prove it innocent, though he made no explanation when first called on for one, or whether he ever attempted to make one. Besides this, the charge was upon the weight of evidence.
Opinion delivered December 19, 1888.Because of the error in the charge, and because the evidence does not warrant a conviction, the judgment is reversed and the cause remanded.
Reversed and remanded.