Cоnviction for the theft of a horse, the property of one Berry. There are two counts — one for theft, under article 724; the other under article 742a, Pеnal Code. The prosecution relied for conviction upon the provisions of article 727, which reads: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful meаns, the subsequent appropriation of it is not theft; but if the taking, though originally lawful, was obtained by any false pretext, or with the intent to deprive the owner of the vаlue thereof, and appropriate the property *409 to tbe use and benefit of tbe person taking, and tbe same is so appropriated, tbe offense of tbeft is complete.” Appellant resorted to no falsе pretext or device to obtain tbe borse. There is not tbe slightest circumstаnce in the record tending to show that appellant, when be obtained рossession of the horse, intended to deprive tbe owner of tbe value thereof. Tbe first count is not sustained, because appellant obtained рossession of the horse with tbe consent of tbe owner, without false pretext or device, and without intending to deprive tbe owner of its value.
Second сount: Did appellant have possession of tbe borse by virtue of a contract of hiring, as charged in this count? The facts, as stated by tbe owner, are: Dеfendant wanted a borse to ride. “I told him I bad a bay mare that was not gentle, but wanted to get some one to gentle her so my family could ride her. He (defendant) said, if I would let him use her, be would take her and make her gentle for my family. I agreеd with him, and turned the. mare over to him on condition and in consideration that be would take her and use her, and gentle her so my family could use her; and be was to return her to me when be got her safe for my family’s use.” Was this a contract of hiring, or wаs it merely a borrowing of tbe animal by defendant? Contracts of hiring are divided by Sir William Jоnes into two kinds: first, where tbe hirer gains a temporary use of tbe thing; and second, where something is to be done to tbe thing delivered. He gives another bailment as сomodatum — or loan for use without pay. This is borrowing, which is always a mere gratuitous loan. Blackstone gives the distinction between hiring and borrowing thus: “Hiring and borrowing arе also contracts by which a qualified property may be transferred to the hirer or borrower, in which there is only this difference: that hiring is always for a pricе, a stipend, or additional recompense; borrowing is merely gratuitous.” 2 Blacks. Comm., 453. By other writers bailments are divided into three classes: first, where the contrаct is for the benefit of the bailor; second, where it is for the benefit of the bailee; and third, where it is for the benefit of both parties. We are of opinion that the agreement between the parties was a contract of hiring, and not a mere gratuitous loan. The recompense to the owner was thе services to be rendered by appellant in rendering the mare gentle and fit for the purposes desired by the owner. The contract was for the benefit of both. In the case of Chamberlin v. Cobb,
There was no еrror in refusing to continue the case. When appellant sold the horse to Appling he stated that he “got the horse from *410 a man named Moore.” If appellant bad usеd diligence to obtain tbe absent witness, it is not at all probable that tbe witness wоuld have sworn to tbe facts stated in tbe application; and, if be bad, there is no probability of tbeir truth.
Tbe error in tbe charge with regard to the punishment was corrected in another part thereof. Tbe charge should be tested as a whole.
Tbe judgment is affirmed.
Affirmed.