28 Tex. Ct. App. 377 | Tex. App. | 1890
An exception was reserved by defendant to the sixth paragraph of the charge, which paragraph is as follows: “If you believe that the defendant did not, either alone, or as principal as above explained, fraudulently take, as explained in the second paragraph of this charge, the animal described in the indictment, then you will find him not guilty.”'
We think the exception is well taken. Said paragraph of the charge required the jury before they could find the defendant not guilty to believe that he was innocent, whereas they should have been instructed that they should not find him guilty unless they believe from the evidence that as a principal he did fraudulently take the animal. Smith v. The State, 9 Texas Ct. App., 150; Robertson v. The State, Id., 209; Blocker v. The State, Id., 279; Wallace v. The State, Id., 299.
Defendant’s defense was that one Talbot delivered the horse to him, said Talbot claiming the same as his property, and requested defendant to take said horse with him to Arkansas, where defendant was going, and keep the same for him, Talbot, until he called for him; and that he, defendant, received said horse from said Talbot in good faith, believing the same to be Talbot’s property, and carried the same to Arkansas. This, defense was supported by evidence, and demanded a plain, direct, and affirmative instruction from the court, that if Talbot delivered the horse to the defendant, and defendant did not participate in the theft of the-same as a principal, he should not be convicted of the theft of said horse, although Talbot had stolen the same, and although defendant at the time he received the same may have known that Talbot had stolen it.
It was, we think, the" intention of the learned trial judge to instruct the jury upon this vital issue, but we do not think the charge contains, such instructions as the defendant was entitled to under the evidence.
We think the testimony as to the-theft of a saddle and slicker, which theft occurred about the same time and in the same neighborhood of the theft of the horse, was admissible, and that the charge of the court limiting the purpose of such testimony was sufficient. Willson’s Grim. Stat., secs. 1295, 2496.
Because of the specified errors in the charge of the court, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Hurt, J., absent.
