
    BAXTER v. STATE.
    (No. 7666.)
    (Court of Criminal Appeals of Texas.
    Jan. 2, 1924.)
    1. Criminal law <§=>784(i) — Defendant held entitled to instruction on circumstantial evidence.
    In a prosecution for misdemeanor theft where state’s reliance was wholly upon circumstances, it was reversible error to refuse to embody the law of circumstantial evidence in the charge.
    2. Larceny <@=578 — Defendant held entitled to Instruction upon defense of purchase.
    In a prosecution for misdemeanor theft where state’s reliance is wholly upon circumstance of possession of cloth stolen, held, that an appropriate instruction upon the defendant’s affirmative defense of purchase should be given if requested.
    Appeal from Hopkins County Court; Homer D. Pharr, Judge.
    Mrs. J. M. Baxter was convicted of misdemeanor theft, and appeals.
    Reversed and remanded.
    Connor & Ramey, of Sulphur Springs, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is misdemeanor theft; punishment fixed at a fine of $1 and confinement in the county jail for a period of 2 days.

The property stolen was 6% yards of cloth crépe de chine of the value of $3.25. According to the state’s theory, the piece of cloth was lost in the store of Ed Barker in the latter part of April, 1922. Some 30 days later, a piece of cloth identified by Barker was found in the possession of Mrs. Stidham. When found, the cloth was of a different color. The cloth was purchased by Mrs. Stidham from the appellant at a date not remembered by the purchaser. At the time of the sale, appellant stated that she had purchased the article from a certain store in Sulphur Springs. Testimony was introduced controverting the claim of purchase.

. According to the appellant’s theory, supported by her testimony and by that of others, the article which she sold to Mks. Stidham was purchased by her and had been in her possession for a month or two prior to the time of the loss of the article in question. Uoth direct and circumstantial evidence was produced to support that theory. Appellant testified to the purchase of the cloth, and gave as. a reason for selling it that she needed some money for a member of the family and did not want to inform her husband of the fact.

There 'is no occasion to set out the evidence in detail. No one claims to have seen the taking. The state’s reliance was wholly upon circumstances.

The court failed to embody the law of circumstantial evidence in its charge. Exception was duly reserved and a special charge requested and refused. This action of the court is properly here for review. Error was committed, and a reversal must follow. Plores v. State, 13 Tex. App. 668, and other cases collated by Mr. Branch in his Ann. Tex. P. O. § 2478.

Upon another trial, if requested, an appropriate charge instructing upon the appellant’s affirmative defense of «purchase should be given. Branch’s Ann. Tex. P. O. § 2465.

Because of .the error pointed out, the judgment is reversed and the cause remanded. 
      . <@u^For other cases see same topic and KE5f-NUMBER in all Key-Numbered Digests and Indexes
     