
    TAYLOR v. STATE.
    (No. 6343.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.
    State’s Rehearing Denied Oct. 12, 1921.)
    .1. Larceny <@=>3(4)— Fanner, taking possession of supposed stray pig, without intent to appropriate it, not guilty of theft.
    A farmer, who takes possession of a pig interfering with his crops, thinking it a stray hog, and intending, not to appropriate it, hut merely to estray it, or take legal steps to dispose of it, is not guilty of theft.
    2. Larceny ¡@=368(2) — Whether defendant took pig merely with the intention to estray it held for the jury.
    In prosecution for theft of a hog, evidence held to require submission to jury of Whether the defendant had taken the pig in his possession, after it had interfered with his crop, thinking it to be ,a stray pig, with the intention, not to appropriate it, but merely to estray it, or take legal steps to dispose of it.
    3. Larceny <g=>3(2) — Where property is taken for legal purpose, but thereafter appropriated, original taking not theft.
    ■If one takes property for legal purpose, and thereafter conceives the intent to appropriate it, and does so appropriate it, his original taking would not be theft.
    4. Criminal law ¡@=o72l i/2 (2) — District attorney’s argument, that defendant’s wife would have given testimony showing defendant’s guilt, if used as witness, not error.
    Where defendant’s wife had been sworn as a 'witness, but had not been used, district attorney’s statement in argument that he believed defendant’s wife, if used as a witness,, would have sworn to facts believed by such attorney to show defendant’s guilt, held not error.
    Appeal from District Court, Henderson County; W. R. Bishop, Judge.
    Adolphus Taylor was convicted of tbe theft of a bog, and -be appeals.
    Reversed and remanded.
    Miller & Miller, of Athens, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for tbe State.
   LATTIMORE, J.

Appellant was convicted in tbe district court of Henderson county of tbe offense of tbeft of a bog, and bis punishment fixed at two years in tbe penitentiary.

By various special charges, tbe refusal of which is complained of by bills of exceptions approved by the trial court, appellant sought to ■ have his theory of the case presented to the jury. Appellant appears to have taken preliminary steps to raise a crop upon the land of the owner of the alleged stolen hog, but after the matter of theft arose said relationship seems to have been severed. The facts disclosed that appellant did not deny taking tbe bog in question. It was a small pig, and was carried by appellant to tbe home of his father-in-law, at which place it was recovered by tbe officers and restored to the owner. Appellant testified that the pig was interfering with his crop, and that he thought it was a stray, and that he consulted several people about what he should do, and they gave him advice, the substance of which was that he could do nothing more than to take the pig up and keep it until it could be legally' estrayed. A Mr. Avant, who was consulted by appellant in regard to tbe matter, promised him that he would obtain legal advice for him the first time hé went to town. Several other witnesses testified to the effect that appellant consulted them about said stray bog. There is some confusion in the record as to ■ whether the. hog he was talking to these people about was the pig in question, or another hog which appears to have been in the neighborhood; but this did not deprive appellant of his right to have an affirmative charge to tbe jury submitting the theory npon which he relied, and which was that the hog in question was that which he took up as an estray, and about which he consulted the various witnesses mentioned.

There were a number of charges, presenting in various ways the theory relied upon by appellant. We do not tbink it necessary for tbe court to have given all of same in charge, but do think material error was committed by refusal of the court to submit said issue. The jury should have been substantially told that, if appellant took tbe pig in bis possession, not intending at the time, to appropriate same, but intending only to estray it or take legal steps to dispose of same, then be should be acquitted. It is also true that if one takes property for a legal purpose, and thereafter conceives the intent to appropriate same, and does so appropriate it, his original taking would not be theft.

We do not think any error appears in the argument of the district attorney to the effect that, if the wife of appellant had been used as a witness, said attorney believed she would have sworn facts believed by him to show appellant’s guilt. The wife of appellant had been sworn as a witness, but was not used.

Without further discussion of the case, for the errors above mentioned, the judgment will be reversed, and the cause remanded.

On Motion for Rehearing.

The state, in a motion for rehearing, urges that, in giving special charge No. 5 for the appellant, the trial court gave the law substantially as stated by us in the original opinion as that to which appellant was entitled. Said special charge wholly omitted the essential element of the belief of the accused that the alleged stolen hog was an estray at the time he took same into his possession. There can be no question of the right of appellant to have the jury affirmatively told that, if he believed when he took up said hog that it was an estray, and that he did not then intend to appropriate it, he should be acquitted.

The motion for rehearing will be overruled. 
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