Aрpellant was convicted of the theft of cattle,, and appeals.
The indictment alleges the ownership to be in one W. Harrison, and the evidencе shows the cattle were taken from Baylor County, and carried into Archer County, and were found in the inclosure of one John Unsell. The case is one depending wholly upon circumstantial evidence, as to who was the taker. The cattle were unbranded when taken, and were branded when found in Unsell’s pasture. The witness Crаddock, sheriff of Baylor County, had the defendant and Unsell under arrest at Unsell’s place; the defendant being under 'arrest for theft of cattle at Seymoure, but not thе-cattle mentioned in this indictment. The witness (after arresting defendant) and Unsell were riding about the pasture with defendant and Unsell, looking at the cattle. The witness warnеd defendant that anything he might say could be used against him or for him; and while looking at the cattle, subsequent to the warning, the witness said to defendant and Unsell that “there was а lot of branded stuff here, and pointed: out to Unsell and defendant several burnt cattle, and asked them about
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the same, and said to them if the stuff was in his (Craddock’s) cоunty, he would take charge of it.” He also asked Hnsell where he got certain burnt cattle,—"the burnt-ladder steer, the bow and arrow cow,” and others not burned; and Hnsell said he got several of them from defendant, who was present, "or words to that effect.” This evidence was objected to by appellant because these matters had no connection with the offense under investigation, and was calculated to prejudice the jury against him; that defendant was under arrest for a different offense, and had been warned by the officer that anything he (defendant) would say could be used for him or against him. The bill of exceptions does not rеcite that defendant made any reply to any of the questions, and leaves him in the attitude of maintaining silence. The testimony should have-been excluded on this ground. See Gardner v. State (Texas Crim. App.),
The defendant requested the court to charge the jury that unless defendant was connected, as a principal, with the original taking, he could not be convicted for the theft. The court failed to charge this directly, and an exception was reserved in regard to this matter. Under the facts of this case, we bеlieve that such a charge should have been given. The evidence discloses the fact that the cattle were taken in Baylor County, and subsequently found in Unsell’s рasture, in his possession, in Archer County. They had been freshly branded, and defendant assisted in such branding at Unsell’s pasture. It is shown that the cattle reached Unsell’s pasturе during the night; that defendant was absent from Unsell’s until that night; that he came to Unsell’s residence during the night, and was there the following morning. About the time the cattle were taken frоm Baylor County, defendant was in that county. He was not seen in pos *260 session of the cattle in Baylor County, nor even in Archer County, except as above statеd. If he was not present at the taking, or doing some act that would constitute him a principal in such taking, then he could not be convicted under this indictment for theft. If his connection with the cattle was first at Unsell’s pasture, when the brand was placed upon them, he could not be convicted of theft. To constitute a pаrty guilty of theft, he must be a taker, within the contemplation of the statute defining theft. That he was an accomplice, or an accessory, or a recеiver of stolen property, would not justify a conviction for theft; he must have been an original taker. Inasmuch as the defendant asked a charge, and it was rеfused, and an exception ivas reserved, we believe it was error on the part of the court in refusing to give said charge.
The court gave the following сharge, which was duly excepted to: “In this case you can not consider, as a circumstance against the defendant, the fact that he failed to testify in his оwn behalf; and, in your deliberation concerning your verdict, you must not discuss the fact that he failed to testify in his. own behalf.” This action of the court is assigned as error. In Tate v. State, 38 Texas Criminal Reports, 261, this court reversed the judgment because the jury, in their deliberation, discussed the failure of the defendant to testify, and used it as a circumstance against him. We have on several occasions called the attention of the trial court to matters where the jury in their retirement discussed fаcts and circumstances that were not placed before them by the evidence, and indicated that instructions should be given to the jury limiting their consideration to matters that were in evidence before them, and cautioning them against the use of facts or circumstances that were not placed before thеm. The statute authorizing the defendant to testify in his own behalf says his failure to so testify shall not be used as a circumstance against him, nor shall it be alluded to in the argument, еtc. The court’s charge simply reiterates that phase of the statute which says the defendant’s failure to testify shall not be used as a circumstance against him. This is the law, made so by the Legislature, and the court’s charge simply stated it as enacted. This matter has been discussed in several of the States, and, so far as we are advised, it has been held proper that such charge should be given as a protection to the defendant, and in several cases the judgment has bеen reversed because the court refused to give such charges. See Whart. Crim. Ev., 9 ed., sec. 435, and authorities cited in notes. This view does not militate against the dеcisions of this "court reversing judgments because the failure of the defendant to testify was commented upon by State’s counsel. Wherever this has been done, this court has reversed the judgment. It is for the benefit of the defendant that such charge as the one in question was given. The giving of such a charge has been held corrеct in this State. Fulcher v. State, 28 Texas Crim. App., 465. There is hardly any well-informed juryman but who is aware of the fact that the defendant is authorized to take the witness stand in his own bеhalf, and, in order to protect the defendant against using his failure to testify in his own behalf as a circumstance against *261 him, the statute was in part enacted; and it is fоr his protection and benefit, and in order that he may not be injured by his failure to so testify. For the reasons indicated the judgment is reversed and the cause remanded.
Reversed and remanded.