
    KELLAR v. STATE.
    (No. 3543.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1. Laecent <@=>70—Instructions — Punishment—Statute .
    Where a defendant, who was charged with the larceny of a gate, voluntarily returned it before the indictment was found, it was error to refuse his request to charge the substance of Pen. Code 1911, art. 1343, which provides that, if stolen property be returned before prosecution .shall be commenced, the penalty shall be by fine only.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185,186; Dec. Dig. <@=> 70.]
    2. Larceny <@=>71 — Instructions—Intent-Necessity.
    In a prosecution for larceny of a gate, where the defendant admitted the taking, but testified that he did so because he lived 35 miles from where lumber could be bought, and that he took the gate only to use it temporarily until he could get some lumber, and so informed the prosecuting witness, and that he thought from his past dealings with the witness that there would be no objection, it was error not to give proper instructions as to the intent of defendant.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 191-194; Dec. Dig. <@=>71.]
    3. Larceny <@=>1—Elements—“Theet.”
    A “theft” is the fraudulent taking of property witl] intent to deprive the owner of the value of it, and with intent to appropriate the property to one’s own use and benefit.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. § 1; Dec. Dig. <@=>1.
    For other definitions, see Words and Phrases, First and Second Series, Theft.]
    4. Larceny <@=>71—Instructions — Intent — Necessity.
    In a prosecution for the larceny of a gate, where defendant admitted talcing it, but claimed that it was with intent to use only temporarily, and then return it, it was error to instruct the jury that one could not borrow property without the express consent of the owner, and to refuse to submit the defense of want of felonious intent; since that amounted practically to a peremptory instruction to find the defendant guilty.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 191-194; Dec. Dig. <§=>71. ]
    Appeal from Lamb County Court; C. H. Curl, Judge.
    Earl Kellar was convicted of larceny of a gate of the value of $2, and he appeals.
    Reversed and remanded.
    Austin C. Hatchell, of Plainview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of one gate of the value of $2, and his punishment assessed at confinement in the county jail for 15 days and a fine of $35.

The bill of indictment was returned on the 23d day of last December. It is made to appear by the record that prior to the time the indictment was returned appellant had carried the gate back to the place where he took it from. He contends that under such circumstances, if it should be held that in taking the gate he was guilty of theft, as he voluntarily returned the property before the prosecution was instituted, the court should have instructed the jury the provisions of article 1343, which provides that, if the property taken under such circumstances as to constitute theft be returned before prosecution is commenced, the punishment shall be by fine only, not to exeed $1,000. Appellant asked a special charge presenting this issue, which the court refused. Under the evidence in this case, this article of the statute should have been given in charge to the jury, and the court erred in not doing so.

Again, the evidence in this case raises the issue of whether or not appellant was really guilty of theft in taking the gate. 1-Ie admits taking the gate, but says he lived 35 miles from a town in which lumber could be purchased; that he was passing the I-Iyning place (under 'the control of the prosecuting witness, Mr. Silcott), and the gate in question was lying on the ground; that he needed a gate to fasten up some pigs, and he took it, intending to return it as soon as he could get to town to get some lumber to make him a gate; that the next day Dale McBride was going to Olton (where Mr. Silcott resided), and appellant requested him to tell Mr. Sil-cott that he had gotten the gate and intended to use it for a few days until he could go to Plainview and get some lumber; that he would then return the gate. It is admitted that McBride searched for Mr. Silcott to tell him, but failed to find him. It further appears that before prosecution was begun appellant himself went to Olton, and, seeing Mr. Silcott at the post office, told him about taking the gate, and also told him the circumstances under which he had taken it, and that he would' shortly return it. From the answer of Mr. Silcott appellant saw that Mr. Silcott was not pleased with his action, when he offered to pay Mr. Silcott for the gate, but Mr. Silcott would not sell it to him. Immediately upon his return home appellant carried the gate back to the I-Iyning place.

“Theft” is the fraudulent taking of property, with the intent to deprive the owner of the value of it, and with the intent to appropriate the property to one’s own use and benefit, and, if a jury should believe the testimony offered in behalf of appellant, his acts would not constitute “theft,” as defined by our Code. Of course, he had no right to take the gate without the consent of Mr. Sil-cott, but, if he tells the truth, on account of the previous dealing between the parties he did not think there would be any objection to his taking and using the gate for a few days, and, this issue being squarely made by the evidence, the question of appellant’s intent in taking the gate should have been submitted to the jury under proper instructions.

The court also erred in defining “borrowing” as he did under the facts in this case. When the court instructed the jury one ■could not borrow property without the express consent of the owner, and then refused to submit appellant’s defense of want of felonious intent, the charge, as given under the evidence, was equivalent to peremptory instructions to find appellant guilty.

There are other questions in the case, but we do not deem it necessary to discuss them.

The judgment is reversed, and the cause is remanded. 
      <&=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     