Womack v. State

BROOKS, Judge.

Appellant was convicted of hog theft, and his punishment fixed at two years confinement in the penitentiary. In the view we take of this case, it is only necessary to consider one question to wit: The sufficiency of the evidence. Appellant took a pig of prosecutor Gibson at his special instance and request; and when the pig was seen in the pen of appellant he stated to prosecutor that he might have it, if he desired, and it was his pig. All the facts show there was no apparent intent to steal the pig. There must be a felonious intent in order to constitute theft. There is a total absence of such intent here. If the pig belonged to prosecutor, and this fact is seriously controverted by the evidence, then at most it would have only been embezzlement; but we do not think the evidence supports this. In any event, we hold that the evidence is not sufficient to support the verdict of the jury, and the judgment is reversed and the cause remanded.

Reversed and remanded.