Barefield v. State , 165 Tex. Crim. 581 ( 1958 )

309 S.W.2d 451 (1958)

J. D. BAREFIELD, Appellant,
v.
The STATE of Texas, Appellee.

No. 29103.

Court of Criminal Appeals of Texas.

January 22, 1958.

Thomas H. Dent, Hosey, Greenberg & Schwartz, Galveston, for appellant.

L. F. Benson, Dist. Atty., G. Jerome Jones, Asst. Dist. Atty., Galveston, Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for theft by false pretext of a $25 check; the punishment, two years in jail and a fine of $500.

The state bases its case upon the representation of the appellant to Henry Ardoin that he could get a felony charge then pending against him in district court dismissed if Ardoin would pay him $25. Thereafter Ardoin gave appellant a $25 check which was paid when presented to the bank.

Appellant testified that he cashed the check in question for Ardoin as an accommodation. He also called a witness whose testimony corroborated his about cashing the $25 check.

Appellant contends that the court erred in refusing to give his requested charge wherein he sought to have the jury instructed that if he cashed the check for Ardoin or if they had a reasonable doubt thereof, to find him not guilty.

Appellant's testimony raised the affirmative defense presented by the requested charge and authorized an acquittal if accepted by the jury. The refusal of the court to give the requested charge or one of similar import constitutes reversible error. Rodriguez v. State, 162 Tex.Cr. R. 332, 285 S.W.2d 757.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.