Gray v. State

Conviction is for theft, a misdemeanor. It is charged that appellant stole a ten-dollar bill from Joe Gerdes, a youth about sixteen years of age. The boy lived with his mother and father. He took a ten-dollar bill to the store of the appellant and sought to have it changed. Appellant kept the money and said he would credit it upon the account which was due him for groceries furnished to the family and which was charged to the father of Joe Gerdes. When the boy presented the bill for change, it appears from the testimony of both the appellant and the State that in reply to an inquiry by appellant as to whether the money belonged to him or to his mother, the boy stated that it belonged to his mother. Afterwards, in the same conversation, according to the boy's testimony, he said it was his money. The boy testified upon the stand, as did his mother, that the money belonged to him. Both appellant and his wife testified that this claim was not made until the time of the examining trial. Soon after appellant had retained the money, Mrs. Gerdes came and claimed it, saying that she needed the money as the family was without food; and she was told by appellant that he would furnish her the groceries that she needed and charge them to her account.

The court instructed the jury that if the appellant took the money upon a bona fide claim of right, they should acquit him.

A request was made to instruct the jury that if the father of Joe Gerdes was indebted to the appellant and the money was the property of Mrs. Gerdes and that it was taken and afterwards applied to the account, they should acquit. We think this charge ought to have been given. There was no claim that the money was the separate property of Mrs. Gerdes, and if the facts were as outlined in the special charge, there was an absence of an intent to steal. The point has been decided by this court on several occasions. Young v. State, 37 Tex.Crim. Rep.; Williams v. State, 22 Tex.Crim. Rep.; Young v. State, 34 Tex. Crim. 291; Branch's Ann. Tex. Penal Code, Sec. 2470. See also Barton v. State, 89 Tex.Crim. Rep..

The refusal of the requested charge requires a reversal of the judgment. The defects in the record having been cured, the order dismissing this cause is set aside, and the judgment is reversed and the cause remanded.

Reversed and remanded.