Most of the questions so earnestly and ably presented in the oral argument and brief of counsel for appellant are of a character not likely to arise at another trial of this case, and consequently will not be discussed by us.

Serious complaint is made of the sixth paragraph of the charge of the court to the jury. It is claimed that there is no evidence in the case authorizing, much less calling for,¿such an *708instruction, and moreover it is contended that said instruction is not abstractly correct as law. We are not prepared to say that the charge was not called for by the evidence: on the contrary, there was evidence tending to show that defendant and other parties conspired to fix up and prove a purchase of the animal after it was taken possession of by defendant. And whilst the said instruction is awkwardly expressed, perhaps, we are clearly of opinion that, when critically scanned, the doctrine it announces is a correct principle in law. We do not think said instruction is obnoxious to either of the objections urged to it.

We are of opinion, however, that the court erred in excluding the testimony of the witness Barrett, as shown by defendant’s bill of exceptions' No. 2. Barrett and defendant were partners in the butcher business. Barrett authorized defendant to trade a certain horse of his for cattle. Defendant proposed to prove by Barrett that he, defendant, had told Barrett that he had traded said horse to one Mike Kegans for five head of cattle, four of which had been delivered, and that the other was a JSP cow, running upon the range. Defendant also proposed to prove by Barrett that Mike Kegans had also informed him, witness, of the same facts.

In explaining his ruling in excluding this evidence the learned judge places it upon the ground that defendant’s statements to Barrett were made before he was charged with the theft, and that when his right to the animal was first questioned he gave a different account of his ownership. We take a different view of the matter. Defendant explained to Barrett how he had traded the horse, and what cattle he had traded him for. This was just after he had made the trade and when he first assertéd any claim or ownership of the animal in question. It was in fact an explanation of his right to the possession of the animal, though that right may not have been then controverted or called in question. As to the conflict in the account he then gave and that subsequently made by him, it seems that in the first instance he claimed to have purchased it from Mike Kegans, and in the second, to have gotten it from Pate, the owner. This discrepancy may be reconciled by the fact that Mike Kegans claimed to have gotten it from Pate and sold it as Pate’s agent to defendant, and in this light it may be said that defendant got it from Pate.

The importance of Barrett’s testimony is apparent, especially *709in view of the fact that the jury, after they had been in retirement some time considering of their verdict, came into court and asked to have him recalled to the witness stand, to know if he had not stated in evidence “that one of the cows John Kegans bought for him was a JSP cow on the range.” In •answer to their request the court replied that the evidence had been excluded from their consideration, it being inadmissible. Because of error in the exclusion of this evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.