
    Barton Smith v. The State.
    No. 8426.
    Decided June 25, 1924.
    1. —Receiving Stolen Property — Requested Charges — Value of Property.
    Where, upon trial of receiving stolen property, there was undisputed evidence that there was a market value and also a difference between the cash market value and the credit market value, and the issue was sharply drawn on the question of value, the requested charge that the value intended was the cash market value in the county of the prosecution should have been given, and the failure tr do so is reversible error. Following: Cunningham v. State, 90 Texas Crim. Rep., 500.
    2. —Same—Requested Charge — Innocent Intent.
    The appellant’s theory that his connection with the alleged stolen property was with an innocent intent rather than with a fraudulent one, should have been submitted to the jury.
    Appeal from the District Court of Coryell. Tried below before the Honorable J. R. McClellan.
    Appeal from a conviction of receiving stolen property; penalty, two years imprisonment in the penitentiary.
    
      The opinion states the case.
    
      H. E. Bell, for appellant.
    
      Tom Garrard, Attorney for the State, and Grover C. Morris, Assistant Attorney, for the State.
   MORROW, Presiding Judge.

Receiving stolen property is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

The subject of the theft was a part of a sulky plow, the parts omitted being a mold-board and thribble tree. At the time the plow was taken it had been used.

It is the theory of-the State that Barney Smith, a brother of the appellant, had stolen the plow and that the appellant, knowing it to be stolen, received and concealed it.

According to the appellant’s theory, as developed from his testimony, when he became aware that his brother had stolen the plow and brought it home, he gave immediate advice to his brother to return it, and aided in hiding the plow on the assurance that it would be returned to the owner; that his action was impelled entirely by the desire to have his brother voluntarily return it and thereby mitigate any punishment that his brother might receive, and with no intent on appellant’s part to keep the property or deprive the owner of its value.

The owner, Morgan, testified that the plow, when new and complete, had a market value of seventy-five dollars; that it would cost him fifty-five dollars to replace it in its condition at the time it was stolen. The plow was purchased originally from R. S. Saunders for seventy-five dollars on credit, -in which amount was included $2.50 difference between the credit price and cash price for the plow complete. With the parts missing at the time of the theft the market price would be fifty dollars. According to this witness, his estimate of the depreciation from the use which the evidence showed had been given was from $2.50 to $10.

On the question of “value,” the court instructed the jury that if they had a reasonable doubt whether the property was worth fifty dollars or more, they would give the appellant the benefit of the doubt. Exceptions were addressed to the charge because of the omission therefrom of any measure or rule by which the jury might determine the value; and special charges were requested for the purpose of supplying the omission.

In one of these charges a request was made in substance that the value intended was the cash market value in Coryell County. It seems to be undisputed that there was a market value and also a difference between the cash market value and the credit market value. As we have indicated, the evidence was conflicting and the issue sharply drawn on the question of value. From the evidence, the jury might have found the value to be ten dollars below fifty dollars. Under the law, if the value was less than fifty dollars, the offense committed was a misdemeanor; if above fifty dollars, it was a felony. The evidence is in such condition that the difference of $2.50 which, according to the undisputed evidence, was the difference between the cash and credit market prices, might have turned the scale on the issue of value in behalf of the appellant. Under the circumstances, we think the charge mentioned should have been given. Martinez v. State, 16 Texas Crim. App., 123; Keipp v. State, 51 Texas Crim. Rep., 417; Cunningham v. State, 90 Texas Crim. Rep., 500.

The appellant’s theory, namely: that his connection with the plow was with an innocent intent rather than a fraudulent one, should have been submitted to the jury. An appropriate special charge upon the subject was requested. The only defensive theory presented by the appellant was that -in assisting -his brother to hide the plow he did so on the promise of his brother to return it, and that the hiding, so far as the appellant was concerned, was for the sole purpose of awaiting an oportunity for making the return and and with no fraudulent intent on his part. This theory was not embraced in the court’s main charge, and is requested upon another trial, we think it should not be omitted.

The judgment is reversed and the cause remanded.

Reversed and remanded.  