White v. State

Willson, Judge.

Defendant requested a special instruction as follows: “If you find that when defendant was called on for an explanation of his possession of the money charged to have been stolen, that he said he had found the money in Miller’s pasture, and that he had not stolen it, and that he had intended to give it back to Miller, but that he had not seen Miller since he found the money, and that he thought he would bet the money on a horse race and win some money for himself on a. horse race and then give it to Miller, and you believe said explanation. was reasonable, natural, and probably true, then you can not convict defendant unless the State has shown such explanation to be false, and the State must so show beyond a reasonable doubt.”

This instruction the court refused to give, and the defendant excepted. In this we think the court erred. We think the evidence demanded such charge, and its substance or equivalent was not embraced in the general charge given to the jury. The issue presented by said special instruction was plainly raised by the evidence, and the jury should have been directly and clearly instructed as to the law upon such issue. Fernandez v. The State, 25 Texas Ct. App., 538; Guest v. The State, 24 Texas Ct. App., 530; Boyd v. The State, Id., 570.

It was error we think to charge with respect to the theft of property of less value than twenty dollars. Ho such issue was raised by the evidence. While, this error in the charge would be regarded as favorable to the defendant, and therefore immaterial if it had not been excepted to, yet having been excepted to and properly presented by a bill of exception, we must hold the error to be reversible error.

Other errors assigned are not considered tenable.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Judges all present and concurring.