
    DRUMMOND v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1. Criminal Law (§, 1038) — Appeal — Reversible Error.
    In a prosecution for a misdemeanor, the failure of the court to charge upon the defensive evidence offered will not necessitate a reversal, where no special charge was requested.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    2. Larceny (§ 3) — What Constitutes.
    Where accused had found a pair of gloves, which the prosecuting witness had left in the post office, and, thinking that they belonged to another person, took them to- give to such other person, but, on seeing a lost notice of the prosecuting witness, returned them to him, accused was not guilty of larceny; there being no intent on his part to appropriate the gloves to his own use.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 3-10; Dec. Dig. § 3.]
    Appeal from Archer County Court; J. S. Melugin, Judge.
    John Drummond was convicted of theft, and he appeals.
    Reversed and remanded.
    W. E. Forgy, of Archer City, and Mathis & Kay, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted, charged with theft of a pair of gloves.

Jeff Lyles testified he was in Dundee, went in the post office, and left his gloves lying on the shelf;. that he returned to the post office some time afterward, and found they were gone, and he then advertised for them; that two days later he was again in Dundee, when appellant approached him with the gloves and asked him if they were his gloves, and when he replied they were, appellant delivered them to him, stating at the time he found them at the post office, and, thinking they belonged to Mr. Parker, and left there by him, he had taken them to deliver to Mr. Parker, but when he learned of his (Lyle's’) advertisement he thought it proper to bring them to him and see if they belonged to him.

Appellant testified to going to the post office and finding the gloves on the shelf; that he thought they belonged to Mr. Parker, and took them to return them to Mr. Parker; that during the same day he learned Mr. Lyles claimed to have lost his gloves, and as soon as Mr. Lyles returned to town he carried them to him, explaining the matter to him. In his testimony he is supported by his father, sister, and Mr. Maxwell. Appellant introduced testimony showing that his reputation was that of a quiet, law-abiding boy.

The court, in his charge, did not present affirmatively appellant’s defensive evidence; but, this being a misdemeanor, no special charge being requested in regard thereto, we would not reverse for this reason. However, we do not think-that the evidence discloses any criminal intent in taking the gloves, nor any disposition to deprive the owner of the gloves, nor their value, nor intent on the part of appellant to appropriate them to his own use. Appellant is a young man or boy, whose reputation appears to be unsullied prior to this transaction, and with this meager evidence we cannot get our consent to brand him as a thief in early life.

To our mind, the evidence completely refutes the idea of any criminal intent on his part, and the judgment is reversed, and the cause is remanded.  