
    T. Beckham v. The State.
    Theft—Charge oe the Court. — Though there was evidence, in a trial for theft, tending to prove that the accused acquired the stolen animal by exchanging his horse for it, the court omitted to instruct on the effect of an honest acquisition of the animal by the accused, and refused an instruction which, though not itself a proper one on the subject, invoked the attention of the court directly to that issue. Seld, error; the court should have submitted the issue to the jury by a proper instruction.
    Appeal from the District Court of Dallas. Tried below before the Hon. G. N. Aldredqe.
    The indictment and conviction were for theft of a mare. The instruction asked and refused was for acquittal in case the jury believed the accused “traded for the mare without notice that she was stolen.” Two witnesses for the defence testified that they saw the accused give his horse and $3 for a mare, which, if their evidence was true, may have been the stolen animal.
    
      Hawkins & Kemble, for the appellant.
    
      
      Thomas Ball, Assistant Attorney-General, for the State.
   Clark, J.

The instruction asked by appellant and refused by the court, though not a full and exact exposition of the law applicable to the particular facts, served at least to direct the special attention of the court to a palpable omission in the main charge, and should have been given with proper additions and explanations.

There was certainly evidence before the court and jury which tended directly to establish an honest acquisition of the stolen animal by the defendant, and the court had no more authority to withdraw its consideration from the jury, under an appropriate instruction, than it had to decide the issue of fact joined between the State and the defendant. Heath v. The State, 7 Texas Ct. App. 464; Smith v. The State, 7 Texas Ct. App. 382. That the finding was materially affected by such omission is manifest from the question asked by the jury after they had retired for deliberation.

The judgment is reversed and the cause remanded.

Reversed and remanded.  