The offense is theft of cattle. The punishment assessed is confinement in the State penitentiary for a term of two years.
Appellant presents two propositions upon which he seeks a reversal of this case. The first is that the evidence is insufficient to justify and sustain his conviction, and the second that the court erred in failing to instruct the jury that they could not convict the defendant unless they should find and believe from the evidence that there was some false pretext on the part of the defendant as to some past or present fact upon *Page 389 which defendant (evidently meaning owner) relied and but for which he would not have parted with his property. We will take up each of his propositions in their order and discuss them briefly.
The State's testimony shows that on Sunday, August 20, 1939, appellant came to the home of Anton Willeke to purchase some steers. They finally agreed upon the price thereof, which amounted in the aggregate to $1119.00. Appellant gave Willeke a check in said sum drawn on the First National Bank of San Angelo, Texas, which check was dated August 22, 1939, and he told Willeke that he may lack a few dollars of having enough money in the bank to take care of it; that his son had three carloads of sheep on the market and that it would be that long before the money would be in the bank. Thereupon, Willeke let him have the cattle which appellant immediately carried to the stock-yards at Fort Worth, where he sold them through the Baggett-Kenne Commission Company. Appellant did not intimate that he desired to purchase the cattle on credit, and Willeke would not have sold them to him on credit. Willeke presented the check to the bank for payment on the 22nd day of August, 1939, but the bank declined to pay it because appellant did not have any money in the bank and had not had any in said bank since the 30th day of August, 1937, almost two years. He did not pay for the cattle and had not paid for them at the time of the trial. Appellant did not testify or offer any affirmative defense.
It is our opinion that the evidence is sufficient to sustain the conviction under Art. 1413, P. C. The testimony demonstrates that appellant intended to cause the owner of the cattle to believe, and he did believe, that appellant had all of the money except a few dollars in the bank to pay the check. This was false and appellant knew it to be false when he made the statement. Did he at the time intend to deprive the owner of the value of the cattle and to appropriate them to his own use and benefit? It certainly appears so from the testimony because he told Willeke that he had all but a few dollars in the bank to take care of the check and that the required remainder of a few dollars would be in the bank when the check would be presented for payment on August 22nd. This statement by the appellant was false because he did not at the time, nor did he for two years next preceding the time he so made said statement to Willeke, have any money in the bank to his credit. It is quite evident that said false statement induced Willeke to turn the cattle over to appellant; and it also appears from the record *Page 390 that appellant, at the time, intended to appropriate the cattle to his own use and benefit and to deprive the owner of the value thereof. We think the evidence is ample to sustain the conviction.
Appellant next complains of the court's charge in failing to instruct the jury that unless they should find and believe from the evidence beyond a reasonable doubt that there was some false pretext resorted to by appellant as to some past or present fact which induced the owner to part with his property, etc. to acquit him. It occurs to us that appellant was entitled to such an instruction or one of like import. The court, in paragraph 4 of his charge, instructed the jury generally upon the law of ordinary theft, and in paragraph 5 instructed them as follows: "You are further instructed that in order to convict the defendant of the crime of theft in this case you must be satisfied from the evidence, beyond a reasonable doubt, that he not only did appropriate the one head of cattle to his own use and benefit as alleged in the indictment, but you must further find and believe beyond a reasonable doubt that the intention of the defendant to defraud the owner of the value thereof, (if you have found that such intent existed) existed at or before, the taking of said one head of cattle."
Thus, it will be noted that no instruction was given to the jury upon the issue of a false pretext which was an issue in the case. If the owner of the property sold the cattle to appellant on credit and did not rely upon the false statements and representations, it would not, in our opinion, constitute theft.
The prosecution in this case was based upon Art. 1413, P. C. The facts bring the case clearly within the purview of said article of the statute and appellant was entitled to a fair and adequate instruction of the law applicable thereto. See Maxwell v. State, 134 Tex.Crim. R.; Barnett v. State,43 S.W.2d 449 (452). For a comprehensive instruction on the subject, reference may be had to Segal v. State, 265 S.W. 911,98 Tex. Crim. 485; Hawkins v. State, 58 Tex.Crim. R.. In our opinion, the court should have responded to appellant's timely objection and reformed his charge accordingly. The failure to do so deprived appellant of the right to have the law fairly and adequately applied to the case as made by the evidence. Therefore, the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 391
ON MOTION FOR REHEARING.