I can not concur in the decision rendered. I hold that under article 677, Penal Code, requiring the court to distinctly set forth the law applicable to the case, it was the duty of the court to charge the jury, that if they believed defendant had purchased the horse they should acquit defendant, though they might believe when he purchased the horse from Butler defendantknew that Butler had stolen it or acquired it unlawfully.
It was not sufficient merely to charge, that if defendant bought the property they should acquit, though Butler may have acquired the horse unlawfully. This charge would readily be understood by the jury as instructing them not to convict if Lynch bought the horse without knowing that Butler had stolen it, for they knew that a man may honestly buy stolen property, even though it has to be surrendered subsequently to the owner. But there are but few average juries who willingly let a man go, apparently, unwhipt of justice who has colluded with a thief and purchased his stolen property. It is seldom explained to the jury, that while the law regards the receiver as bad as the thief, it yet holds the two offenses distinct, and requires an indictment for receiving stolen property before one can be convicted therefor. But it is a common understanding among all the people, that one purchasing property knowing it is stolen, is as guilty as the thief, and without definite and clear instructions they will rarely let a receiver escape. Not only is this the opinion of the average man, but this court has been called upon to reverse many cases where district judges have limited acquittals to purchases in good faith. Appellant in this case either stole the horse or bought it knowing it was stolen by Butler. There is, in my judgment, little or no proof of the first proposition, but the evidence strongly supports the last. (The Reporter will insert the testimony.) He was convicted of theft because the law was not distinctly and substantially charged, and I think the case should be reversed. *Page 50