
    Jim Gilbraith v. The State.
    Res gestæ—Evidence of theft.—Evidence of taking other property than that alleged in the indictment to have been stolen is inadmissible, unless necessary to establish identity in developing the res gestæ, or in making out the guilt of the accused by circumstances connected with the alleged theft, or to explain the intent with which the accused may have acted.
    Appeal, from Fannin. Tried below before the Hon. J. C. Easton.
    Jim Gilbraith was indicted for theft of a blue dun bull of the value of fifteen dollars, the property of W. J. Myers.
    On the trial Myers testified that about the 1st of May, 1874, in Fannin county, he found near his residence the carcass of a dead animal, skinned, with part of the neck, head, and ears unskinned. On -careful examination, witness was satisfied that it was the carcass of bis bull. Witness saw the bull on Saturday evening previous about his cow lot, and on the following Monday, about nine o’clock, saw the carcass, &c., in the prairie, about one and one-half miles from his residence. There was a bullet hole back of the right shoulder; did not know whether it had passed through or not; did not examine. Wednesday or Thursday following witness found the hide of his bull at 0. W. Layton’s butcher pen. That “ defendant had no steer of this character.” Witness did not raise the bull; did not know whether the mark and brand were recorded.
    G. D. Thomas testified that he knew the animal described in the indictment. It was the property of Myers, and was well known in the neighborhood. Witness, on Tuesday, after it was known that the bull was stolen, went to Layton’s butcher pen and described the missing animal carefully, and was informed that there was such a hide in the yard. On examining the hide, he found it to correspond in everything with the bull described. Witness notified Myers. Witness knew the animal .well, and has not seen the bull since in the range.
    Lhy'ton testified that about May 1st, 1874, he was a butcher ;.f Bonham. About that time defendant came to witness’
    ■ shop with two hides for sale: one of a blue dun color, skinned up to the neck, the other a red hide, branded S S. Witness bought both hides from accused. On the next day Thomas “ came to my shop, and described a hide. I told him I had such a hide. He (Thomas) said it was the hide of Myers’ dun bull. Thomas went and inspected it; recognized it. Myers afterwards came and identified the hide and claimed it.” Thomas described the hide accurately, and Myers claimed it as his property.
    “On the same day Mr. Jack Russell came to my yard and recognized the hide of «a red steer; said it was his, and' was branded S S. Witness showed Russell the hide of a red steer, which he identified as his property. Ho suits have been instituted for the hides, or either of then}.”
    Albert Stancel testified that defendant had lived with witness a considerable time; was a thrifty freedriran; that defendant must have known the animal in question.
    - There was evidence in behalf of defendant tending to prove; an alibi, and that accused bore a good character.
    The defendant excepted to the testimony concerning Bussell’s steer. -
    . A verdict of "guilty was rendered, punishment fixed at r.hree years in the penitentiary. Motion for new trial overruled, and judgment'entered upon the verdict from which appeal was taken.
    No brief for appellee.
    
      George Clark, Attorney General, for the State.
   Moore, Associate Justice.

The judgment in this case .r'mst be reversed for the error of the court in admitting ■ evidence for the State, tending to prove appellant had committed the theft of a steer belonging to a different party than the -owner of the animal mentioned in the indictment, as it seemed to be supposed, about the same time when the offense was" committed for which he is indicted. •

There are, unquestionably, cases in which it is admissible, in support of the charge against the defendant, to adduce evidence which may refer to and be more directly connected with other offenses than the one for which he is on trial, or even to go directly into and show other criminal transactions of a similar character. Such evidence, however, is admitted mainly when it is necessary to establish identity in developing the res gestee, or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial. (Mason v. The State, 42 Ala., 532.) But much the larger class of cases, where proof of another crime is admissible as direct evidence against the accused, is when the intent with which a particular act is done may be the gist of the offense- (1 Bish. Crim. Proc., sec. 1067, note 4.)

Without undertaking to say that the evidence admitted over the objections of appellant might not be shown to be proper, by a more full- and accurate presentation of the facts than is done by the evidently imperfect record on which the case is now presented, (which shows by bill of exceptions and the charge of the court that testimony went to the jury which is not incorporated in the statement of facts,) we are unable to see, as the case now standsy upon what ground it should have been admitted. It served in no way to identify the thing stolen, or connect the defendant with the offense for which he-was on'trial. It forms-no part of the res gestee. As here presented, it is not apparently a link in a chain of circumstances provi'ng appellant’s guilt of the theft with which he is charged. And the indictmentbeing for theft, and nothing presented from which it can be seen that there was any question before the court as to the intent with which the defendant may have acted, if it was admitted that any such defense could have been set up by him, it is not seen how it was material for this purpose on any issue in the case,'

The judgment is reversed and the cause remanded.

Reversed and remanded.  