29 Tex. Ct. App. 105 | Tex. App. | 1890
As to the ownership of the alleged stolen hogs there is a direct conflict in the evidence. Witnesses for the State testified that they knew Johnson’s hogs, and that the hogs in controversy belonged to him. On the other hand, defendant’s witnesses were equally positive that he owned the same. This conflict in the evidence was settled against the defendant by the verdict of the jury, and this court will not revise the finding of the jury upon that question. But while there is evidence warranting the jury in finding that the hogs belonged to Johnson, and that the defendant took them from their accustomed range without Johnson’s consent and appropriated them to his own use, we are of the opinion that the evidence wholly fails to show that such taking and appropriation of the hogs was accompanied by a fraudulent intent. On the contrary, the evidence shows, in our judgment, the absence of fraudulent intent. It shows that defendant did not believe that he had taken Johnson’s hogs, but believed that the hogs in controversy belonged to him, the defendant, and that Johnson’s hogs were still in their accustomed range, unmarked. We must hold, therefore, that the conviction is not sustained by the evidence.
Upon the issue of fraudulent intent the court in its charge misdirected the jury as follows: “If you believe from the testimony beyond a reasonable doubt that the defendant did not take the property fraudulently, but took the property under an honest claim of right, he would not be guilty ,of theft, and you should acquit him.” This instruction is the very reverse of the rule as to reasonable doubt, and is radically wrong. It was calculated to, and no doubt did, mislead the jury, as the evidence was not so conclusive of the defendant’s innocent intent as to exclude a reasonable doubt of a fraudulent intent on his part in taking the hogs.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.
