The State in a motion for rehearing urges that in giving special charge No. 5 for the appellant, the trial court *Page 85 gave the law substantially as stated by us in the original opinion as that to which appellant was entitled. Said special charge wholly omitted the essential element of the belief of the accused that the alleged stolen hog was an estray at the time he took same into his possession. There can be no question of the right of appellant to have the jury affirmatively told that if he believed when he took up said hog that it was an estray, and that he did not then intend to appropriate it, he should be acquitted.
The motion for rehearing will be overruled.
Overruled.