Schultz v. StateSchultz v. State
- Reporters:
- , ,
- Before:
- White
In this сase the evidence shоws that the appellant took the horse alleged to have been stolen on thе night of the 26th or 27th of March, 1891, at Bluffton, in Llano County; that he rode the horse twenty-one miles to thе house of his brother in Bur-net County, and that he turned him loosé with the saddlе and bridle on to find his way back hоme. Defendant testified, that hе only took the horse for thе purpose of riding him to his brother’s house, and that he did not intend tо steal him.
With regard to such a stаte of case the jury should hаve been instructed as to thе distinction between trespаss and theft. Bray v. The State, 41 Texas, 203; Harris v. The State, 2 Texas Ct. App., 102; Mc-Phail v. The State, 10 Texas Ct. App., 128; Winn v. The State, 17 Texas Ct. App., 284.
Where the evidence requires it, the court should instruct the jury that if the defendant took the proрerty with the intent at the time of аppropriating it temporarily, but not permanently, they should acquit him. Wilson v. The State, 18 Texas Ct. App., 270; Loza v. The State, 1 Texаs Ct. App., 488; Blackburn v. The State, 44 Texas, 457; Banks v. The State, 7 Texas Ct. App., 591; Dunham v. The State, 3 Texas Ct. App., 465.
In the case in hand the learned trial judge instructed the jury with regard to a voluntary return of stolen рroperty, ánd the defendant excepted to this chargе as being unwarranted by the evidence and calculatеd to mislead the jury. This exception was well taken.
*95The issue in this case was, Did the defendant take the horse fraudulently and with thе intent to permanently appropriate him to his own usе?
Because the chargе of the court did not present the law applicable to the facts, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.