On a former day of this term the judgment in this case for theft was affirmed. In his motion for rehearing, appellant insists that the affirmance was erroneous, for the reason that the court below refused to give the jury his requested instruction with reference to the law of circumstantial evidence. The charge was properly requested, as it relates to form and substance, and being refused, this action of the court was duly excepted to as required in misdemeanor cases in this State.
After a more careful review of the case, we are of opinion that the point is well taken, and the court below erred in refusing to give the requested instruction.
Upon the former review of the case we were of the opinion that it came within the rule laid down in the Montgomery case, 20 South western Reporter, 926, but after a more thorough investigation we think the facts in regard to the taking do not bring this case within that rule.
The rehearing is granted, and for the reason above given, the affirmance is set aside, and the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.