Bennett v. StateBennett v. State
- Reporters:
- , ,
- Before:
- Willson
“If property, taken under such circumstаnces as to-constitute theft, be vоluntarily returned within a reasonable timе, and before any prosecutiоn is commenced therefor, the рunishment shall be by fine not exceeding оne thousand dollars.” Penal Code., art. 738.
It appeared from the evidence that a few days after the defendant discovered that the cow in question was claimed by Sanderson, thе owner,, and before any prosеcution had been commenced for the theft of said cow,, he returnеd said cow into said Sanderson’s possession. This being the-evidence, the above quoted provision of the code was a part of the law of the case, and it was the imperаtive duty of the judge to give it in charge tо the jury, whether requested or not by the defendant. Anderson v. The State, 25 Texas Ct. App., 593; Guest v. The State, 24 Texas Ct. App., 530; Willsоn’s Crim. Stats., sec. 1287. Such charge was not givеn, and the-failure to give it vitiates the сonviction.
We will say further that we could not permit this conviction to stand had such charge been given, becаuse in our judgment it is not warranted, by the evidеnce. There was no actual taking of the cow by defendant-*343He sold cattle in the same mark and brand of said сow, which cattle were gathered from the range by the person to whоm he sold, and among those so gathered was the cow in question.. Defendаnt did not see the cow or know that shе had been taken until he learned that Sanderson claimed her, and when he learned that it was Sanderson‘s cow he returned her to him. It is apparеnt to our minds from the evidence befоre us that the cow was taken through mistаke, and that the defendant did not fraudulеntly take her, nor fraudulently cause hеr to be taken. A new trial should have bеen granted the defendant becаuse the verdict was not supportеd by but was contrary to the evidence.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Hurt, J., absent.