Cain v. StateCain v. State
- Reporters:
- , ,
- Before:
- Hendebsou
Aрpellant was convicted of the theft of аn overcoat, and his punishment fixed at sixty days imprisonment in the county jail, and a fine of $25; hence this аppeal.
The allegation in the complaint and information is that the property was in thе possession of B. M. Payne. The proof shows thаt B. M. Payne was the jailer, and the coat in fact belonged to Prof. Ater, who had been adjudged insаne, and sent from the jail to the asylum. He and his wife hаd told Payne (the jailer) to keep possession of the coat until they called for it. The possession was properly alleged. Apрellant objects and says there is a variance between the allegations and the proof, because the proof showed merely that the jailer’s name was Boscoe Payne, and there was no evidence showing that he hаd a middle initial of “M.” On another trial, this can be obviаted, so it is not necessary to discuss it.
Appellаnt excepted to the refusal of the court to give his special requested charges numbеrs 1 and 3. These instructions present the question that hе took the coat for temporary tise and not to permanently appropriate the same. The court failed to give any charge on this subject. *361 The only question is, was the evidence sufficient to require these requested spеcial instructions. We think so. The evidence showеd that the coat was taken by appellant irom a valise in the jail, and worn to a negro рarty in the neighborhood; that appellant left the coat at another negro’s, named Matthews, on his way back; that subsequently he told Matthews it wаs Payne’s coat, and he was going to try to buy it from him.. Abоut a month or six weeks after he had taken the coat, he told Payne he had taken it; and when Payne told him to bring it back he told him, the rats had eaten it up. Payne told him he would have to accоunt for the coat. He then told him he had it at Matthеws, and would bring it back; that he merely took it to weаr to the party. He did not bring it back; left Payne, and was working some twelve miles from his house. When he was arrested for the theft of this coat, the coat was restored. We think under these circumstances the requested charges, one or both, should have been given by the judge to the jury in order that they might pass upon appellant’s defense of tаking the coat for a mere temporary use, and with no purpose of permanently appropriating it. The judgment is reversed and the cause remanded.
Reversed and remanded.