
    Albert Edwards v. The State.
    No. 2994.
    Decided March 23, 1904.
    Theft—Insufficiency of Evidence—Mistake.
    Where defendant was charged with theft of a bale of cotton, which was left with him as ginner, which he afterwards sold, and the appropriation was not fraudulent, he was neither guilty of theft nor embezzlement.
    Appeal from the District Court of Boeltwall. Tried below before Hon. J. E. Dillard.
    Appeal from a conviction of theft; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      L. D. Stroud and T. B. Bidgell, for appellant.
    
      Howard Martin, Assistant Attorney-General, for the State.
   BBOOKS, Judge.

Appellant was convicted of the theft of a bale of cotton, and his punishment assessed at confinement in the penitentiary for a term of two years. The facts in this case show that appellant and his partner, Lawrence, were running a gin at the town of Heath, Bockwall County; that prosecuting witness brought cotton to the gin, which was ginned into a bale, and left in the custody of appellant and his partner in the gin lot. Appellant took charge of the cotton and sold it. Under this state of facts appellant would not be guilty of theft; but if guilty at all, it would be of embezzlement. However, the evidence before us does not show with that degree of certainty necessary to sustain the conviction that appellant was guilty of any offense. The evidence merely shows a mistaken identity on the part of appellant as to this bale of cotton, and if he took the same it was an honest mistake under the belief that it was his own bale of cotton. Because the .evidence does not support the conviction under the charge in the indictment, the judgment is reversed and the cause remanded.

Reversed and remanded.  