
    GRAY v. STATE.
    (No. 6684.)
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1922.
    Appeal Reinstated April 12, 1922.)
    On Motion to Dismiss Appeal.
    1. Bail <s=>68 — Appeal recognizance held insufficient.
    An appeal recognizance concluding with “to abide the judgment of the Court of Criminal Appeals of the State of Texas,” and omitting the words “in this case,” is insufficient.
    On the Merits.
    2. Larceny @=»7I (4) — Refusal of instruction that, if defendant took money belonging to wife and applied it on a bill owed by her husband for groceries, to acquit, held error.
    In a prosecution for larceny, where a boy brought defendant a §10 bill to change, which was kept by defendant to apply on a grocery bill owed by the boy’s father, in view of evidence that the money belonged to the boy’s mother, without being her separate property, the refusal of an instruction that if the money belonged, to the boy’s mother and was taken and applied to the account owed by her husband, to acquit defendant, was error.
    Appeal from Wichita County Court, at Law; Guy Rogers, Judge.
    L. B. Gray was convicted of theft, and he appeals.
    Reversed and remanded.
    Davenport & Thornton, of Wichita Falls, for appellant.
    R. G.- Storey, Asst. Atty. den., for the State.
   On Motion to Dismiss Appeal.

MORROW, P. J.

The conviction is for misdemeanor theft.

The recognizance concludes with these words: “ ⅜ * * to abide the judgment of the Court of Criminal Appeals of the State of Texas.”

It is incomplete, in that it omits the words, “in this case.”

The purpose of the recognizance is that the judgment of the Court of Criminal Appeals will be performed in the particular case in which the recognizance is made. In a number of instances, it has been necessary to dismiss the appeal because of the same omission as that apparent in the present instance. Bodkins v. State, 75 Tex. Cr. R. 499, 172 S. W. 217; Branch’s Ann. Texas Penal Code, p. 315, § 620.

The motion made by the state to dismiss the appeal must be sustained.

On the Merits.

Conviction is for theft, a misdemeanor.

It is charged that appellant stole a $10 bill from Joe Gerdes, a youth about 16 years of age. The boy lived with his mother and father. He took a $10 bill to the store of the appellant and sought to have it changed. Appellant kept the money and said he would credit it upon the account which was due him for groceries furnished to the family and which was charged to the father of Joe Gerdes. When the boy presented the bill for change, it appears from the testimony of both the appellant and the state that, in reply to an inquiry by appellant as to whether the money belonged to him or to his mother, the boy stated that it belonged to his mother. Afterwards, in the same conversation, according to the boy’s testimony, he said it was his money. The boy testified upon the stand, as did his mother, that the money belonged to him. Both appellant and his wife testified that this claim was not made until the time of the examining trial. Soon after appellant had retained the money, Mrs. Ger-des came and claimed it, saying that she needed the money, as the family was without food; and she was told by appellant that he would furnish her the groceries that she needed and charge them to her account.

The court instructed the jury that, if the appellant took the money upon a bona fide claim of right, they should acquit him.

A request was made to instruct the jury that, if the father of Joe Gerdes was indebted to the appellant and the money was the property of Mrs. Gerdes and that it was taken and afterwards applied to the account, they should acquit. We think this charge ought to have been given. There was no claim that the money was the separate property of Mrs. Gerdes, and, if the facts were as outlined in the special charge, there was an absence of an intent to steal. The point has been decided by this court on several occasions. Young v. State, 37 Tex. Cr. R. 457, 36 S. W. 272; Williams v. State, 22 Tex. App. 338, 3 S. W. 226; Young v. State, 34 Tex. Cr. R. 291, 30 S. W. 238; Branch’s Ann. Tex. Penal Code, § 2470. See, also, Barton v. State, 89 Tex. Cr. R. 387, 230 S. W. 989.

The refusal of the requested charge requires a reversal of the judgment. The defects in the record having been cured, the order dismissing this cause is set aside, and the judgment is reversed and the cause remanded. 
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