Bart. Burkett lived in Gonzales county; and. *604in the spring of 1881 lost about one hundred head of sheep,. On or about the fifteenth day of November, same year, John J. Hester and Tobe Deering were found in the possession of eighteen head of Burkett’s sheep, Hester stating that he had purchased them from defendant, Hill Deering, who was not present. Burkett stopped the sheep, putting them in his pen, and Hester sent for defendant. When the defendant arrived he stated that he had sold the sheep to Hester. When the defendant first arrived he said the sheep were his, but afterwards said in same conversation that they were honest property, and that he had sold them for his little brothers. An agreement was made, the terms of which were that Burkett was to “let Hester go on with the sheep, and defendant was to bring suit against Burkett for them, Willis Arrington standing security to Burkett for the same.” Defendant did not sue Burkett. Hester sold the sheep to Lee Floyd, and Floyd and Burkett arbitrated the matter, Burkett gaining the sheep, and Floyd paid him for them.

Viewing this evidence in its strongest light against defendant, what does it prove? First. That defendant sold the sheep to Hester, as his own property, or as the property of his little brother. Second. That he agreed to bring suit against Burkett for the sheep, but failed to do so. A most thorough scrutiny of all the evidence in the record will not show at any time defendant in possession of these sheep. On the other hand when we take in consideration the testimony for the defense, without conflict on material points, the confession of defendant “that he sold the sheep to Hester” will be reconciled with his perfect innocence.

Be this as it may, theft is the fraudulent taking of property, etc. The taking by defendant must be proved by the State such taking as would constitute him a principal. Does the fact that he sold the sheep, some six months after they were taken, to Hester, constitute" proof of such taking? It may be urged by the. State that there is other evidence tending to prove the taking. What is it? The altering the brands and marks? Who altered the marks and brands? Did the defendant? There is not only no evidence to support this theory, but, on the contrary, the evidence of the witnesses who speak to this point, or facts bearing upon this point, most clearly negatives such theory. (The Reporter will give the evidence in full.) But, suppose the *605brands and marks to have been altered by defendant, will this alone support the charge of theft? We think not; for, if so, defendant could be convicted of two felonies upon precisely the same proof. We are of the opinion that the evidence does not support the verdict.

The seventh paragraph of the charge is, we think, justly complained of by the defendant. This is the objectionable part of that paragraph: “If the jury have a reasonable doubt as to whether the defendant honestly and in good faith, believing he had a legal right so to dispose of said sheep to Hester, * * * then they should give him the benefit of such doubt and acquit him.” But suppose the jury should believe from the evidence that defendant did not honestly and in good faith believe that he had the legal right so to dispose of the sheep, then and in that event what should they do? Convict, of course. The palpable-error in this charge consists in leading the minds of the jurors from the issue made and tendered by the indictment, to wit: did defendant fraudulently take the sheep from the possession of Burkett? This was the issue, and the only issue which could be determined by the jury under the indictment. Other inferior issues may be determined in order to a decision of this main issue, but for no other purpose. From this charge the jury would be justified in concluding that it was the offense of theft to sell the sheep of Burkett to Hester, unless in good faith the defendant believed that he had the.legal right to do so; and defendant’s honesty in his belief in regard to his legal right to sell is made the issue by this part of the charge. This, as we have said, is error—the issue being that defendant fraudulently took the sheep. This was affirmed by the State and denied by the defendant. This must be proved by the State, to sustain a conviction on this indictment. For no subsequent felonious or fraudulent connection with the sheep, whatever it may be, will justify a conviction for theft. Possession of property recently after the theft, unexplained, is used for the purpose of proving that the party so in possession was the fraudulent taker. A party being so in possession is not punished for being in possession; but from this possession it may be presumed that he was the party who fraudulently took the property. We are not passing upon the weight to be given to recent possession of stolen property, but the purpose for which it can be used.

For the error in the charge, and because the verdict is not *606supported by the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered October 24, 1883.