
    DOWNS v. STATE.
    (No. 4413.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    LARCENY <&wkey;71(2) — INSTRUCTIONS—INTENT. _
    _ In prosecution under Pen. Code 1911, aft. 1329, for theft, by taking from a baggage check room a bag belonging to another and converting it, where defendant claimed that he had presented his cheek for his own Bag, and that the agent confused the numbers, and that when he received the bag he was intoxicated and had no intention of stealing the bag, but subsequently decided to do so, he was entitled to instruction that, if the jury found his theory to be correct, he was not guilty.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 192.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Oscar Downs was convicted of theft, and he appeals.
    Reversed and remanded.
    P. O. Lopp and G. W. Dunaway, both of Et. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a judgment condemning appellant to confinement in the state penitentiary for a term of two years upon an indictment and conviction for theft.

It appears appellant deposited his suit case with the agent of the Texas & Pacific Railway Company in charge of its baggage-room in Et. Worth, and received a check corresponding with the number on his suit case, which was 53252. He returned the check, and the agent by mistake gave him a suit case belonging to another party, on which the check number was 52352. Appellant claimed that he did not discover the mistake made until the next day after he had gotten possession of the suit case; that at the time he received it he had been drinking, and was intoxicated; that he delivered the check which the agent gave him and received from him a suit case which he supposed to be his own until the following day. There was evidence showing that after discovery of the mistake appellant converted the property.

The court charged the jury on the law of theft, and appellant excepted to the charge on the ground that it failed to tell the jury, in effect, that if appellant at the time he received the property did not know that it was not his own, and did not at that time intend to appropriate it to his own use, but formed that intention subsequently after discovering the mistake, that he would not be guilty. Appellant also requested special charges, which were refused, submitting this issue. The prosecution was under article 1329, P. 0. Mr. Branch, in his Annotated Penal Code, with reference to the subjects involved, uses the following language, and cites the authorities mentioned:

“If the original taking was lawful, no false pretext being used; a conviction based upon a subsequent appropriation will not be sustained under an ordinary indictment for theft. Stokely v. State, 24 Tex. App. 509, 6 S. W. 538; Taylor v. State, 25 Tex. App. 101, 7 S. W. 861; Nichols v. State, 28 Tex. App. 107, 12 S. W. 500; Williams v. State, 30 Tex. App. 153, 16 S. W. 760; Jones v. State, 49 S. W. 387; Gosler v. State, 56 S. W. 51; Peters v. State, 49 Tex. Cr. R. 365, 91 S. W. 224; Warrep v. State, 106 S. W. 382; Richards v. State, 55 Tex. C. R. 281, 116 S. W. 587.
“Proof of the conversion of the property is not sufficient, of itself, to show that defendant intended at the time of the taking to deprive the owner of the value of the same and to appropriate it to the úse or benefit of defendant. Pitts v. State, 3 Tex. App. 210; Hernandez v. State, 20 Tex. App. 152; Stokely v. State, 24 Tex. App, 510, 6 S. W. 538; Cox v. State, 28 Tex. App. 95, 12 S. W. 493; Williams v. State, 30 Tex. App. 155, 16 S. W. 760; Lopez v. State, 37 Tex. Cr. R. 650, 40 S. W. 972; Gosler v. State, 56 S. W. 51.”

Appellant’s defense was that the original taking was not unlawful, and at the time there was no intent to appropriate the property. The appellant was entitled to a charge upon his defensive theory raised by the evidence. Wilson v. State, 76 S. W. 434; Bullard v. State, 41 Tex. Cr. R. 225, 53 S. W. 637; Varas v. State, 41 Tex. 527; Henry v. State, 9 Tex. App. 358; Cameron v. State, 9 Tex. App. 332; Melton v. State, 56 S. W. 67; Coleman v. State, 55 S. W. 836; James v. State, 32 Tex. Cr. R. 511, 24 S. W. 642; Fruger v. State, 63 S. W. 130.

The failure of the court to give such a charge was material error, and because thereof it is ordered that the judgment of the lower court be reversed, and the cause remanded.  