
    COHEN v. STATE.
    (No. 3715.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    Game <&wkey;>9 — Prosecution—Instructions.
    In a prosecution under Act March 13, 1911 (Acts 32d Leg. c. 60) § 5, for having in his possession for the purpose of sale and for offering to sell the hide of a wild deer killed in the state, where the evidence raised the issue as to whether defendant first told the game warden that the hide was for sale, but that he was not then in possession of it, but it was in possession of his employer, and that he had no authority to sell it, and, after learning from his employer that it could not be sold, so informed the officers seeking to buy it, the refusal to instruct that, if the jury so found, they should acquit, was reversible error ; and the court should have instructed conversely for the state that, if defendant was in possession of the hide with authority to sell it, and offered it for sale, even though a mere employs of another, he would be guilty.
    [Ed. Note. — For other cases, see Game, Cent. Dig. § 9; Dec. Dig. <&wkey;>9.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    William Cohen was convicted of having in his possession for the purpose of sale and for offering to sell a hide of a wild deer killed in the state, and he appeals.
    Reversed and remanded.
    Davies & Davies, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen. for the State.
   PREND'ERGAST, P. J.

Under section 5 of the act approved March 13, 1911, appellant was convicted for having in his possession for the purpose of sale and for offering to sell one deer hide of a wild deer killed in the state.

There are but two questions necessary to pass upon in the disposition of this case: First, the appellant claims that the evidence is insufficient to sustain the conviction. We have carefully read the statement of facts, and cannot so hold.

His second contention is that the court erred in refusing to give, among others, his special charge to the effect that, if the jury believed from the evidence that upon inquiry made of him he first answered to the deputy game warden that the deer’s hide was for sale, but that at said time he was not in possession of it, but it was in possession of A. Cohen & Co., and that he had no authority to sell said hide, and after learning from the manager of said firm that it could not be sold, so told the officers seeking to buy it, or, if they have a reasonable doubt as to his guilt under this phase of the case, to acquit him. Without reciting it, the evidence pertinently raised this issue, and we think the court committed reversible error in failing and refusing to give in substance, said charge. On another trial, if the testimony substantially raises this issue as it did in the former trial, the court should not.only give the said charge substantially as asked by appellant, but should also in behalf of the state give the converse of the proposition; that is, that if appellant was in possession of the hide, and had authority to sell it, and offered it for sale, even though he was a clerk or mere employe of A. Cohen & Co., then he would be guilty under the law. We do not intend to give the verbiage of the charge, but merely the issue to be submitted.

For the error pointed out, the judgment is reversed, and the cause remanded.  