
    5085.
    Hunter et al. v. The State.
    Decided October 28, 1913.
    Indictment for larceny of cow; from Colquitt superior court— Judge Thomas. June 9, 1913.
    
      W. F¡ Way, Bryan & Bryan, for plaintiffs in error.
    
      J. A. Wilkes, solicitor-general, contra.
   Russell, J.

This case is controlled by the rulings of this court in Paulk v. State, 5 Ga. App. 572 (63 S. E. 659), Moses v. State, 8 Ga. App. 446 (69 S. E. 575), and Smith v. State, 11 Ga. App. 385 (75 S. E. 447). From the state of the evidence in the record, it was the duty of the court (without a request) to instruct the jury that if the intention to steal was not formed until after the killing of the cow, the defendants would not be guilty of the offense of cattle-stealing, and could not be convicted under the indictment. It was error to charge the jury, in effect, that although the killing was accidental, if the defendants thereafter formed the intention of converting the carcass to their own use they would be guilty. Judgment reversed.  