¶1As shown by defendant’s third bill of exceptions, he proposed to prove by the witness Calsado “ that, at the time said defendant returned on the morning that he went out to hunt his two horses, and after he, defendant, returned to the Knox ranch, that he stated to the witness that he had failed to find but one of his horses; that some person had taken the other horse of his, and that he found the mare in question with his other horse, and that he intended to take said mare to U valde and see if he could find an owner for her, as he supposed the person who took his horse which was taken left this mare with his, defendant’s, horse which was not taken. That defendant further stated that if he could find an owner for said mare in Uvalde ■county, he would deliver said mare to such owner. That defendant did not claim to own said mare.”
¶2This proposed evidence was objected to by the counsel for .the ¡State, because it was irrelevant, and the objection was sustained lby the court. In this ruling the court erred; the evidence was not irrelevant, but was pertinent to show not only the character *2521 of defendant’s possession, but also his intent with regard to the- . possession. While perhaps not technically res gestee, yet, when considered in the light of the evidence which was adduced on the trial, these delarations do not appear to be self-serving and inadmissible.
¶3We are further of opinion that the evidence is insufficient to-support a conviction for either theft or driving the animal from its accustomed range with intent to defraud the owner; of which latter offense defendant was convicted. There is no proof that defendant ever drove the animal from its accustomed range. When found by Lonnie Reynolds, the owner, in possession of the mare, it was in the town of Uvalde, in or near her range, where the owner had hobbled her out; and defendant stated to said witness that “ he had brought the mare to Uvalde to find an owner for her, and in case he found an owner for said mare he would give her up.”
¶4In view of the insufficiency of the evidence, the court also-erred in overruling defendant’s motion for new trial.
¶5The judgment is reversed and the cause remanded.
¶6Reversed and remanded.
¶7Opinion delivered May 17, 1884.