
    HALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1913.)
    1. Criminal Law (§ 789) —.Evidence—Instructions.
    Where, on a trial for theft from the person, the state showed that accused committed the theft, while he showed that a third person committed it, and the only contested issue was whether accused or the third person committed the offense, the refusal to charge that if the third person committed the theft, or if the jury had a reasonable doubt as to whether he committed the offense, accused must be acquitted was erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1819, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    2. Criminal Law (§§ 770, 1172) — Trial-Evidence — Instructions.
    Where the testimony raises the issue that a third person may have committed the offense, the issue must be submitted, and the refusal of a special charge submitting it is reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1806, 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. §§ 770, 1172.]
    3. Criminal Law (§ 359) — Evidence — Admissibility.
    Where the state, on a trial for theft from the person, showed that accused committed the offense, while he showed that a third person committed it, the reputation of the third person for honesty was in issue, and the state could prove his general reputation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 789, 790; Dec. Dig. § 359.]
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    J. P. Hall was convicted of theft from the person, and he appeals.
    Reversed and remanded.
    P. B. Cox, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No.' Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of theft from the person, and his punishment assessed at two years’ confinement in the state penitentiary.

The state’s testimony would show that appellant was the person who stole the money. That the money was stolen, and from the person of W. J. Hannan, while he was asleep, is proven beyond doubt; but the defendant and his witnesses would make Troy Lane the one guilty of the offense. Defendant swears that he saw Lane go into the pockets of Hannan while he was asleep, and that he reported these facts to the officers that night. In this he is supported by the officers, who testify that appellant did report the matter to them, and they arrested Lane that night. The issue was sharply drawn by the testimony whether appellant or Lane was the thief, and appellant requested a charge that, if the jury found and believed that Troy Lane took the money from the prosecuting witness, Han-nan, they would acquit him, or, if they had a reasonable doubt as to whether or not said Troy Lane took said money, they shquld acquit. We are of the opinion this charge should have been given.

Under an unbroken line of decisions, this court has held that, where the testimony raises the issue that another person may have committed the offense, this issue must be submitted to the jury in the charge of the court; and, where a special charge is requested and refused, this will present reversible error. It might be said that the only contested issue in this case was, Who took the money, defendant or Troy Lane? The state’s testimony would show that defendant was the person who did so, while the testimony offered in behalf of defendant would show that Troy Lane was the person who took the money.

The other matters presented in the motion for a new trial we do not deem it necessary to discuss, as they will not likely occur on another' trial. But we will say that, defendant and his testimony tending to show that Troy Lane was the person who had stolen the money, his reputation for honesty would be an issue; and it was permissible for the state to prove his general reputation in this respect.

The judgment is reversed, and the cause is remanded.  