Conviction is for theft, punishment assessed at fifteen days in the county jail. By an ordinary indictment for theft appellant is alleged to have taken a riding planter from the possession of D. H. Hardy, in January, 1934.
Appellant had been a tenant on a farm of Hardy for two years. Under the rent contract Hardy furnished appellant with teams and farming tools. Before coming to Hardy's place appellant had lived in Madison County and Hardy moved him from his former home to the farm in Walker County. Appellant had the planter in question when he moved to the Hardy place. According to Hardy's testimony he was to be paid for moving appellant, but the latter did not have the money and by agreement sold Hardy the planter in payment. The farm upon which appellant lived was four miles from Hardy's residence. The latter never took actual possession of the planter, but during the two years it remained in appellant's possession. Hardy *Page 328 testified that he told appellant to leave the planter on the premises when he moved.
This prosecution grew out of the fact that the planter was sold and delivered to one Gregory. Mrs. Decker (wife of appellant) testified that the planter belonged to her, was purchased by her with her separate money and property, and that she sold the planter to Gregory.
Under the State's testimony it is clear that the possession of the planter never passed to Hardy, even though appellant may have been holding it under Hardy's consent after a claimed purchase by Hardy from appellant.
It was called to the trial court's attention by a refused special charge that under such circumstances appellant could not be convicted under an ordinary indictment for theft. See Sec. 2522, Branch's Ann. Texas P. C., McWhorter v. State,65 S.W.2d 1101.
The judgment is reversed and the cause remanded.
Reversed and remanded.