
    BARROW v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Embezzlement (§ 48*) — Conversion by Bailee — Instruction as to Punishment.
    In a prosecution for the conversion of a cow in possession of accused, an instruction defining theft and stating the punishment therefor was proper, where the law as to conversion by bailee provided that a person guilty of that offense should be punished in the same manner as if guilty of theft.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 72-75; Dec. Dig. § 48.*]
    2. Embezzlement (§ 16*) — Conversion by Bailee — What Constitutes.
    Where defendant was in possession of a cow belonging to another under an agreement to borrow the cow, and fraudulently converted it to his own use without the owner’s consent and with intent to deprive the owner of the value thereof, there was a conversion.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 17, 18, 21; Dec. Dig. § 16.*]
    3. Criminal Law (§ 782*) — Trial — Wei&ht of Evidence.
    It is the peculiar province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony, and hence an instruction that the jury could not “weigh” the testimony was improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1847, 1849, 1851, 1852,1877, 1878, 1880-1882, 1906, 1907, 1909-1911, 1960, 1966, 1967; Dec. Dig. § 782.*]
    4. Criminal Law (§ 814*) — 'Trial—Instructions— Conformity to Issues.
    Where there was no testimony raising the issue that defendant in a prosecution for conversion might have thought he had authority or permission of the owner to sell the cow in question, the court did not err in refusing a requested charge thereon.
    L-ftd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. s 814.*]
    5. Criminal Law (§ 784*) — Trial—Instructions— Circumstantial Evidence.
    In a prosecution for the conversion of a cow in possession of accused, where the animal converted was positively identified by the state, and accused merely claimed that the state’s witnesses _ were mistaken therein, and that issue was fairly submitted and found against defendant, a failure to charge on circumstantial evidence was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Jim Barrow was convicted of converting to his own use a cow in his possession, the property of another, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of converting to his own use a cow in his possession, the property of D. S. Donald, and his punishment assessed at two years’ confinement in the penitentiary.

No bills of exception were reserved in regard to the admission of testimony, so the only question before us is: Did the court err in the charge as given, or in refusing the special charges requested?

The court, in his charge, defined “theft” and stated the punishment for theft. This was not improper, as the law as to the commission of the offense of conversion by bailee provides that a person guilty of that offense shall be punished in the same manner as if he had been guilty of theft, and it was proper to state the punishment fixed by law for a violation of the law of theft.

It was not necessary to define the word “conversion,” further than it was defined in the charge. The court instructed the jury: “Now if you find and believe from the evidence beyond a reasonable doubt that prior to the time of the filing of the indictment herein and about the time alleged therein that the defendant, Jim Barrow, was then and there in possession of a certain cow belonging to D. S. Donald under and by virtue of an agreement of borrowing said cow with or from the said D. S. Donald, and that he did then and there fraudulently convert said animal to his own use, without the consent of D. S. Donald, the owner thereof, and that such conversion by the defendant was with the intent to deprive the said D. S. Donald, the owner thereof, of the value of the same, then you will find the defendant guilty and assess his punishment at confinement in the penitentiary for any term of years you may see fit, not less than two nor more than four.”

The special instruction that the jury could not “weigh” the testimony should not have been given. This is the peculiar province of the jury, for the law makes them the judges of the credibility of the witnesses and the weight to be given their testimony.

There was no testimony raising the issue that appellant may have thought he had the authority or permission of Mr. Donald to sell the cow in question; consequently the court did not err in refusing the special charge requested on that issue.

The only other complaint in the motion we deem it necessary to discuss is that the court erred in failing to charge on circumstantial evidence. Appellant approached Mr. Donald to borrow some cows to milk. Mr. Donald agreed to loan them to him, and told appellant the two cows he could have, and told him to go to the pasture and get them. Appellant admits this, and admits he got the cows, but says the cow he sold was not one of the cows thus secured by him. Appellant is seen in possession of two cows which are identified as the Donald cows, and the two cows Donald says he loaned him. Some time after getting the two cows from Mr. Donald, appellant sells a cow to Mr. Guyse for $42.50. This cow sold by appellant to Guyse is positively identified by Mr. Donald as one of the cows loaned to appellant. This cow was also positively identified as the Donald cow by George Lynch, Ruby Lynch, James Waide, and others. Appellant admits selling this cow to Guyse; he contending only that the witnesses were mistaken as to the identity of the cow, he saying the cow he sold to Guyse was a cow that he had purchased from Mr. Crowder. This issue was fairly submitted to the jury by the court in his charge, and the jury finds against appellant’s contention. Under such circumstances, we do not think the failure to- charge on circumstantial evidence would present any error.

The judgment is affirmed.  