
    R. D. Smith v. The State.
    Evidence.—On the trial of one charged with removing cattle from their accustomed range, (under art. (¡549, Pas. Dig.,) the defendant ma)' show that lie purchased the cattle from one who represented himself as agent of the owner of eatt-le of the same, road-brand, which had estrayed from the herd while passing through the county, for the purpose of rebutting the presumption of felonious intent arising from defendant’s possession of the stock; and such evidence is admissible, though the defendant may not be able to show a written bill of sale, acknowledged, certified, and recorded, to the alleged owner of the herd, for the cattle, or cattle of the same brand.
    Appeal from Williamson. Tried below before the Hon. E. B. Turner.
    R. D. Smith was indicted on the 7th of November, 1873, the indictment charging that he “did, on the 15th day of October, A. D. 1873, * * unlawfully and willfully take into his possession, and drive, use, and remove from its accustomed range, certain live stock,” &c. The second count charged an intent to deprive the owner of the value, &c. The defendant attempted to explain his possession of the stock, by shoxving his purchase from one xvho claimed to have authority to dispose of the same from the owner, xxrho had lost them from his herd while driving through the county. This testimony xvas excluded until the defendant could show that the principal xvhose agent had sold to defendant had himself a proper bill of sale, showing a complete chain of title to the stock. The action of the court in this regard xvas assigned for error.
    Verdict, guilty, line assessed at one thousand dollars, and judgment accordingly, from which defendant appealed.
    
      
      J. A. Houghton, for appellant.
    
      George Clark, Attorney General, for the State.
   Devine, Associate Justice.

The defendant was in-dieted, tried, and convicted (under art. 766 of the Criminal Code, Pas. Dig., art. 6549) for having taken into his possession, and removing from its accustomed range, a cow branded in two places with the letter 0 and figure 2, with the intent, &c., the cow not being his own, &c.

Defendant’s motion for a new trial having been overruled, an appeal was taken, and the case is presented on the exceptions taken and errors assigned.

So much of the assignment of errors will be noticed as is deemed of any importance. It is sufficient to say that the assignment that “the court erred in its instructions to the jury ” is not sustained by an examination of the charge of the court to the jury. The charge and instructions of the court are full, clear in statement, and embrace “the law applicable to the case.”

Defendant excepted to the refusal of the court to admit the evidence of Eapier and Halabe, on behalf of defendant, to show that in April, 1872, one James Lane, said to be from Gonzales, was driving a drove of cattle to Kansas, and in passing through Williamson county informed witnesses and other persons that his herd had “stampeded; ” that he authorized them and others to gather and sell or dispose of such stock belonging to him. Lane, and that his road-brand was a figure 2. Defendant further offered to prove by Halabe that he had been authorized by Halabe to collect the stock said to belong to Lane, and having the road-brand 2, and that Halabe sold to him the animal described in the indictment, having first informed defendant of his authority from Lane to sell the same. The court refused to permit the witnesses “to testify to any of these facts, unless accompanied with proof that said James Lane, the owner, had at the time a written bill of sale or bills of sale of these alleged lost cattle, duly acknowledged or proven, and recorded and certified, as by law provided.” The court further refused to permit Halabe to testify to the sale of the cow by him to defendant, “unless upon the further proof of said James Lane having for himself a proper written bill of sale of said cow, so as to show a complete chain of title to the cow.”

We think the evidence was admissible in order to explain the possession of the animal charged to have been stolen. While his possession of it was prima facie illegal, such possession was not conclusive of a felonious taking. (See Mills v. The State, decided during the present term.) And while the evidence might not be sufficient to show title in defendant or Halabe to the property, or authority to drive or sell, it was nevertheless evidence that should have been permitted to go to the jury, in aid of the accused in rebutting, so far as it, in the mind of the jury, tended to rebut the felonious intent. How far, under all the facts and circumstances of the case, it might go in favor of the defendant, it is not our province to determine. It was testimony, however, to which the accused was entitled, as it might have led the jury to reduce the punishment to the penalty prescribed for a misdemeanor, under art. 767 of the Criminal Code, (Pas. Dig., art. 6553.) The refusal of the court to permit the evidence to go to the jury was error, for which the judgment is reversed and the cause remanded.

Eeversed and remanded.  