¶1The controlling inquiry in this case, as presented by the record, is, the county in which the trade was made. One witness testifies it took place in Talladega county, the other in Coosa. This raised a question for decision by the jury. If the trade was made in Coosa, and Jones took possession of the horse, under the trade, in that county, then the horse was under his control, although it was agreed the defendant should accompany him to the town of Talladega, to be there paid the residue of the purchase price. On the other hand, if only a temporary exchange of horses took place in Coosa county, each riding the other’s horse, to be re-exchanged at pleasure, and in this condition they entered Talladega county, then Lucas, the defendant, can be convicted, if the charge be otherwise made out, although he may not have had the actual custody of the horse in Talladega county. In the case last supposed, Jones would be but the agent or instrument of Lucas in carrying the property into the county, and the guilty act would be properly chargeable to Lucas. Several of the rulings of the Circuit Court are not reconcilable with these views. We need not particularize. — 1 Bish. Cr. Law, § 137, et seq.
¶2Reversed and remanded. Let the prisoner remain in custody until discharged by due course of law.