¶1As made by the record the case -was one wholly of circumstantial evidence, and the court failed to instruct the jury as to that character of evidence. Under -oft-repeated decisions, such failure in the charge in a felony is fundamental error.
¶2Defendant’s application for continuance was to enable him to *345procure the testimony of two witnesses by whom he expected to prove that, on the day of the alleged sale of the stolen animal to the prosecuting witness Gillum, he went to Bremond and left on the train going toward Calvert There is no question of diligence raised as to this application. Defendant was identified as the thief alone by Gillum, who had never known him before, and who testified: “ If defendant was at Bremond and took the train that day for Calvert, then on account of the distance, and because of the time of the day I saw him in the morning, it would have been impossible for him to have been at the place I saw him, and at the time I saw him.” Gillum says he traded for the mare, giving defendant for her two colts and twelve dollars difference in money. Had the prosecution shown that these colts were subsequently seen in possession of, or that they had been disposed of by defendant, this might have been conclusive of the question of defendant’s identity. Under the evidence, however, we think that the court should have granted the new trial, when the proposed testimony of the absent witnesses is considered in connection with it.
¶3The judgment is reversed and cause remanded for a new trial.
¶4Reversed and remanded,
¶5Opinion delivered May 28, 1884,