
    William Winn v. The State.
    1. Charge of the Court —Practice, — It is incumbent upon th e defendant in a misdemeanor case to except to erroneous charges given, and to the refusal of the court to give instructions asked, in order to subject such questions to review by this court.
    2. .Evidence—Hew Trial.— See evidence held insufficient to sustain a conviction; wherefore a new trial should have been awarded.
    Appeal from the County Court of Hopkins. Tried below before the Hon. J. K. Milam, County Judge.
    The indictment charged the theft of eight gallons of syrup, of the value of five dollars, the property of B. M. Camp. The appellant was convicted and his punishment was assessed at a fine of five dollars, and one hour’s confinement in the county jail.
    B. M. Camp testified for the State that, on or about the 18th day of December, 1880, the appellant came to him on his farm in Hopkins county and asked him for a five gallon keg of syrup with which to pay Doctor Gilbert a medical bill, agreeing to pay witness in labor. He had made the same request of witness two or three times before, but was told on each occasion 'that the witness would not pay him until the labor was performed. Subsequently the defendant approached the witness when he was quite busy, and asked for an order for a five gallon keg of the syrup. The witness told him to go off, that he had no business with an order then. A short time later the witness missed an eight gallon keg of syrup, and meeting the defendant in Sulphur Springs, asked him about it. The defendant acknowledged that he took it. The witness asked why he took an eight instead of a five gallon keg, as asked for. He replied that as there was plenty of syrup there, he thought he would take the eight gallons, and pay for it in labor. An account was running between defendant and witness, of which the witness had paid the larger part, but no ultimate settlement had been concluded.
    Doctor Gilbert testified that the defendant delivered to him what he took to be a five gallon keg of syrup, but which he subsequently ascertained to be an eight gallon keg. <’X,
    
      B. W. Foster, for the appellant.
    
      H. Chilton, Assistant Attorney General, for the State.
   Hurt, J.

Appellant was convicted of the theft of eight gallons of syrup,—a misdemeanor.

The charge of the court was erroneous from its inception to its close. That which was asked by counsel for defendant and refused by the court was the charge demanded by the case made by the evidence. Ho objection was made to the charge given, nor did defendant except to the action of the court in refusing to give the charges requested by him. This being a misdemeanor, it was incumbent on defendant to except in both instances, and reserve his bills. Hobbs v. State, 7 Texas Ct. App. 117, and authorities there cited.

The verdict in this case is not supported by the evidence. The facts not only fail to show a fraudulent intent, but most evidently negative such intent. (The Reporter will insert the evidence.)

The evidence being insufficient to support the verdict, the court erred in not awarding a new trial, for which the judgment is reversed and the cause remanded.

Reversed and remanded.  