relied on to establish defendant's guilt, is not objectionable as leading the jury to believe that it was not necessary to prove the three "links"-the taking, the possession, and the value of the property, when such instruction is explained by another clause, "it is sufficient, if, taking the testimony altogether, the jury are satisfied beyond a reasonable doubt that the State has proved each material fact charged, and that defendant is guilty."'

$259. Instructions as to identity. Where witnesses differ in minor particulars as to the correspondence in description of the animals stolen and those which defendant sold, but they all agree as to a very peculiarly shaped brand which was on one of them, and also on one of those sold, an instruction is warranted submitting the question of identity to the jury under a caution as to reasonable doubt.' Where a person on whom larceny was alleged to have been committed while intoxicated, when afterwards arrested on a charge of drunkenness, told the officer that his name was J., and a woman afterwards came to the police station, recognized him as J., and paid his fine, it was not error, in addition to the instruction requested by defendant, that the jury must be satisfied that the name of the person on whom the larceny was committed was as charged in the indictment, to state that "there is evidence tending to show that the man's name was J."' But an instruction that "the burden of proving everything essential to the establishment of the charge lies on the prosecution; and even if it were conceded that somebody stole a diamond ring from the prosecuting witness, yet the defend

1 Jamieson v. State, 25 Neb. 185. On a trial for stealing a horse the only evidence offered by the state made the case one of possession of property recently stolen. The court's charge was: "In this case the state relies on circumstantial evidence, and to justify a conviction upon such evidence alone, the facts relied upon must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt.' Held, that such charge was erroneous, since it furnished no aid to the jury in determining what weight should be given to such testimony, and on what hypothesis they should convict.Williamson v. State, (Tex App.) 17 S. W. Rep. 722.

State v. Hill, 96 Mo. 357.

3 State v. McAndrews, 15 R. I. 30.

ants are not required or expected to prove who, if any one, committed the larceny," is erroneous, since if the people proved the commission of the larceny charged, and introduced evidence that prima facie identified the defendants as the guilty parties beyond a reasonable doubt, the defendant's might properly be convicted, in the absence of any evidence on their part.'

§ 260. Instructions as to intent or guilty knowledge.The rule is that if there be evidence tending to show that the taking, though tortious, was not with fraudulent intent, it is the duty of the court to submit that issue distinctly to the jury; and if, under such instructions, the jury convict the accused, the conviction will not be disturbed if there be any evidence tending to support it." An instruction that "grand larceny is the stealing, taking or carrying away the personal property of another of the value of more than $50," is erroneous in omitting the word "felonious.""" Where the defense

1 Gindrat v. People, (Ill ) 27 N. E. Rep. 1085.

use.

? Banks v. State, 7 Tex. App. 591. Upon an indictment against S. and his wife for larceny of money, the evidence for the prosecution showed that the prosecuting witnesses delivered money to S. for Mrs. S., according to a previous understanding with the latter that she should invest the money in stocks for the use of the prosecuting witnesses, and tended to show that the defendants obtained the money without any intention of investing it as agreed, and with the fraudulent intent of converting it to their own The court below refused to advise the jury to acquit on the close of the testimony for the prosecution, and upon the close of the trial, in effect, charged the jury to find the defendants guilty if they found that they obtained the money in the manner and with the intent above stated, and afterwards refused a motion for a new trial, based on the ground that the verdict was contrary to the evidence, thus, in effect, deciding that the facts stated constituted larceny. Held, not to be error.- People v. Smallman, 55 Cal., 185. The court charged "that if the prosecutor, with others, agreed or arranged with the principal State's witness that he and defendant should steal the prosecutor's mule, defendant would not be guilty; but if defendant formed a design to steal mules and communicated this design to the principal witness, or if defendant and the principal witness formed such design, and the prosecutor, with others, on being informed thereof, arranged with the principal witness so to conduct matters as that defendant might be detected and caught, defendant would be guilty." Held, no error.- McAdams v. State, 8 Lea 456.

3 People v. Cheong Foon Ark, 61 Cal. 527; Miller v. People, 4 Colo. 182; State v. Moore, 101 Mo. 316; Waidley v. State (Neb.), 51 N. W. Rep. 830;

J

is that defendant sold the stolen property in good faith for one whom he supposed to be the owner, an instruction which authorizes a conviction from the mere fact that he sold property which had been stolen is reversible error.' So is an instruction ignoring the rule that what is felonious intent is a question for the court, but whether it existed at a particular time is for the jury. Where it is proved that defendant took the article openly, and in the presence of another, and that the person from whom such article was taken was only a bailee, the court should direct the minds of the jury to the distinction between theft and trespass, and failure to do so is error. If the defence is that the taking was not with fraudulent intent, but done under a bona fide claim of ownership or right, the merits of the defence are not contingent upon the care or prudence exercised by the accused to ascertain the ownership of the property. A charge is erroneous, therefore, which in effect instructs for conviction if the accused took the property of another under the honest belief that it was his own, but without exercising ordinary care or prudence to identify it as such.' So also it is error to charge that "the intent is to be judged from the act," as it is to be deduced from all the circumstances remotely or immediately attending the taking.

Riojas v. State, 8 Tex. App. 49. Compare Beckham v. State, Id 52; Spinks v. State, Id. 125; Reynolds v. State, Id. 412, 493; Lindley v. State, Id. 445. 1 Graff v. People (Ill.), 25 N. E. Rep. 563.

2 State v. Gaither, 72 N. C. 458.

* Isaacs v. State, 30 Tex. 450; Ainsworth v. State, 11 Tex. App. 339. Neely v. State, 8 Tex. App. 64.

5 McNair v. State, 14 Tex. App. 78. On a trial for the larceny of an overcoat from complaining witness, who was confined in the city prison, the only evidence connecting defendant, another prisoner, with the crime, was that two other prisoners entered his cell with a bundle wrapped in a newspaper, saying it contained dirty clothes, and requesting him to send out the bundle for them. Defendant, without looking into it, passed it through a screen door to his wife, who carried it home. Shortly thereafter, on search being made, it was discovered that this bundle contained the stolen overcoat. Held, that an instruction authorizing the conviction of defendant if he "did any act in furtherance of the commission of such larceny" was erroneous, as the instruction authorized a conviction even if defendant did not know that the overcoat had been stolen, or that it was in the bundle handed to him.-State v. Norman, 101 Mo. 520. A conviction for theft of certain oxen was had upon evidence from which the jury might have

§ 261. Instructions as to intoxication. It is erroneous to instruct the jury "that drunkenness can never be received as a ground to excuse or palliate a crime," because when and how far drunkenness may excuse or palliate must depend on its motives, degree, and effect on the mind.' Therefore it is correct to charge that drunkenness can be looked to to ascertain and determine the condition and state of defendant's mind, and throw light upon the question of the existence of malice.' To charge that "insanity produced by intoxication does not destroy responsibility where the party when sane and responsible made himself voluntarily intoxicated, and drunkenness forms no defense whatever to the fact of guilt;" that such evidence can only be considered by the jury for the purpose of determining the degree of crime, is correct, as is a charge" that if the defendant at the time he converted the property to his own use was so drunk as not to know what he was doing, he ought to be acquitted, unless the evidence showed that the felonious intent existed when he was in the full and undisturbed possession of his mental faculties.'

§ 262. Instructions as to ownership, want of consent, etc.- Ordinarily the jury should be charged that they must find that the evidence is in accord with the indictment on the question of the ownership of the stolen property, but failure to submit, by express instruction, that they should find the ownership of the property as charged is not reversible error, when there is no dispute as to the ownership, and no requested

inferred that, though the defendant killed the oxen without their owner's consent, and afterwards skinned them and appropriated the hides, yet that he killed them because they were depredating on his crop, and with no intent to appropriate them or any part of them. Held, that the trial court should have distinctly instructed the jury that, in case they so found the facts to be, the defendant was not guilty of theft of the oxen. It was not sufficient to instruct that such a state of facts would warrant a conviction for the misdemeanor of killing live stock without the owner's consent, etc. — McPhail v. State, 10 Tex, App. 128.

Golliher v. Com., 2 Duval 163; 87 Am. Dec. 493; Smith v. Com., 1 Duval 224.

2 Moon v. State, 68 Ga. 687.

3 People v. Lewis, 36 Cal. 531.

State v. Schingen, 20 Wis. 74.

instruction to that effect, and where the jury are charged as to the necessity of finding all the other essential elements and ingredients of the theft." Where on a trial for theft of horses, the defendant claiming that he was but the employe of the taker of the animals, the jury were instructed for acquittal in case they so found the fact to be, unless they further found that the defendant was present when the horses were taken by his employer, and, knowing the latter's unlawful intent, aided or encouraged him in the taking; this was held a correct instruction on the amenability of the defendant as a principal offender.' Where the evidence shows that the stolen horse was owned by G., but was taken from the possession of R., who was holding it for G., an instruction that if defendant fraudulently took the horse from the possession of G., and from the possession of R., without the consent of either, and with intent to deprive G. and R. of said horse, and appropriate it to his own benefit, he is guilty, is correct.' But where the indictment connected A., B., and C. with the ownership and possession of the property, two of whom being special owners, and the court charged that the jury should. convict if they believed, etc., that the taking was without the consent of A., B., or C., "or either of them;" this was held error, as authorizing conviction if any one of the three failed to consent.'

1 Cunningham v. State, 27 Tex. App. 479. An indictment for theft of cattle alleged the property and possession to be in one H. The proof showed that the cattle belonged to the wife of H., but were under his exclusive management and control, and were taken therefrom without his consent, or that of his wife, so far as he knew or believed. The court charged the jury that to convict they must find that H. was the owner, or had the management and control, and refused a general instruction to the effect that if the ownership was in one person and the control in another, the want of the consent of both must be shown. Held, in view of the evidence and the provisions of the Code, that the charge given was correct, and there was no error in refusing the instruction requested.-Burt v. State, 7 Tex. App. 578

2 Anderson v. State, 8 Tex. App. 542.

English v. State, (Tex.) 15 S. W. Rep. 649.

4 Woods v. State, 26 Tex. App. 490; Jones v. State, 28 Tex. App. 42. The indictment charged defendant with taking money from the owner's possession without his consent. It appeared that it was taken from one who had it to give to the owner. Held, that a charge that, to convict, the jury must