¶1The appellant, Aleck Logan, together with. *410William Logan, was indicted in the district court of Hood-county, charged with the theft of a cow, the property of Joseph Walton. The jury found him guilty, and assessed his punishment at- two years’ imprisonment in the penitentiary.
¶2Appellant’s motion for a new trial was overruled, notice of appeal given, and the case is presented for revision.
¶3The 1st error assigned is that the verdict of the jury and-the judgment thereon are contrary to the evidence. There is no proof of venue in the record. A failure to show that the offense was committed in the county of Hood, as charged, is fatal to the judgment.
¶4Joe Walton was placed on the stand by the prosecution, and stated that “ sometime in March, 1875, he saw a bunch of hides in the town of Cranberry, and among the number a hide branded B D ; that he recognized the hide by its; flesh-marks as a hide taken from his cow; that he had seen said cow some two or three weeks before he saw the hide, and that such a cow was worth ten dollars ; that he-had not given the defendant, nor any one else, leave to take or use said cow, nor had he sold the cow to defendant or any one else; that the cow "was a speckled cow, and said-hides were brought to Cranberry by Charles Arrington.”
¶5Arrington proved that he and Drew Middleton found the-hides at T. M. Hill’s. The testimony further shows that these hides were brought down in a wagon to T. M. Hill’s, from a ranch on Buck creek, and were claimed by appellant,, who told T. M. Hill, his step-father, that he had bought them. W. E. Hill, a son of T. M. Hill, testified that he witnessed a sale of the hides, by one Trott, to appellant.
¶6There is no evidence in the record to show that Buck creek is in or near Hood county. Neither Walton nor any of the other, witnesses testified that the witness Walton lived in Hood county, or that the range of the cow described in the indictment was in Hood county.
¶7We cannot presume that the proof of venue was made as *411alleged, and that, through carelessness or inadvertence, it was omitted in making out the statement of facts. County attorneys and district judges cannot be too careful in seeing that the proof of venue, if made, shall go into the statement of facts.
¶8The 2d assignment of errors is “ that the court erred in the charge given to the jury in the 1st, 2d, and 3d subdivisions of its charge.”.
¶9We will only notice that portion of the charge of the court which is embraced in the 3d instruction, which is as follows: “If the jury believe from the evidence that the defendant, in good faith, purchased and paid for the cow alleged to have been taken, or in good faith purchased and paid for the hide removed from said animal, then you should find the defendant not guilty, unless you also believe from the evidence that the defendant had, previous to the time of such purchase, killed or taken, or had been concerned in killing, the said cow.”
¶10By the proviso which was added to this charge the jury were in effect given to understand that “ good faith” would not avail if the defendant ‘ ‘ had been concerned in killing said cow.” This instruction was not applicable to the facts in evidence. It does not appear from the evidence that appellant knew the brand of Walton, or that Walton’s brand was recorded ; and appellant might innocently have assisted some one else in killing Walton’s cow, with no intention of depriving Walton of the value of his cow.
¶11The 3d assignment of errors is that ‘ ‘ the court erred in overruling defendant’s motion for a new trial herein.” The motion for a new trial was predicated on three distinct grounds, viz.: 1st, lack of evidence; 2d, errors in the charge of the court; and, 3d, on account of newly-discovered evidence. The first two we have already discussed. It is unnecessary' to express an opinion as to the third ; on *412another trial the appellant will have an opportunity to pro-cure this newly-discovered evidence.
¶12The judgment of the district court is reversed and the cause remanded.
¶13 Reversed and remanded.