¶1This is a conviction for theft of cattle, resting alone upon circumstantial evidence, and the law applicable to such a case was not given in charge to the jury. This was error. (Brown v. The State, 23 Texas, 195; Cave v. The State, 41 Texas, 182; Hunt v. The State, 7 Texas Ct. App., 212; 9 Texas Ct. App., 105; Id., 275; Id., 299; Id., 476; 10 Texas Ct. App., 293; Id., 485; Id., 507; 11 Texas Ct. App., 456; Id., 631; 12 Texas Ct. App., 283; Id.,. 657; 13 Texas Ct. App., 51; Id., 309; Id., 493; Id., 669; 14 Texas Ct. App., 96; Id., 312; 16 Texas Ct. App., 144; Id., 237; Id., 258; Id., 341.)
¶2The learned judge below charged the jury: “But, on the other hand, if you believe from the evidence that the defendant purchased said cattle from some person other than the owner, and that defendant did not know that such person from whom he purchased said cattle (provided you find from the evidence he did purchase them) was not the owner of the same, but that he bought them in good faith, not knowing that said Biehardson owned said cattle, then, in case you so find, you will acquit the defendant, and you will say so by your verdict.” How, what is the converse of this proposition? Evidently not to acquit, if, from the evidence, the jury should believe that defendant did know that the person from whom he purchased was not the owner; nor to acquit if the jury should believe that defendant knew that Biehardson was the owner, and that he bought in bad faith.
¶3Just here we desire to state, and emphasize the statement, that, if defendant’s first connection with the cattle was subsequent to the talking, whether by a purchase in good or bad faith, or whether he knew the owner or not, most evidently he would not be guilty of the theft of the cattle. That he may have been, under the above circumstances, guilty of receiving stolen property, is not in this case, because of this he has not been charged. Under the indictment in this case, war'. he guilty of the theft of the cattle was the only issue.
¶4*565We would not reverse the judgment for the error in this charge, because in the light of the evidence it is abstractly erroneous, and was not objected to at the trial.
¶5Because the court failed to charge the law applicable to a case of circumstantial evidence, the judgment is reversed and the cause remanded.
¶6Reversed and remanded.
¶7[Opinion delivered February 14, 1885.]