It is contended on behalf of the State that the facts in this case, when fairly considered, negative the proposition that the court should have submitted to the jury the issue as to whether the taking of the automobile in question by the accused was for a mere temporary use on his part. We have again reviewed the testimony. There is no doubt but that the question was properly raised. The charge was excepted to in two places, one for its failure to tell the jury that they must believe beyond a reasonable doubt that even though the appellant took the car in his possession, still they must believe from the evidence that he took it intending to appropriate it. In another place the charge was excepted to for its failure to tell the jury that if they believed, or had a reasonable doubt thereof, that the accused took the car in question merely for the purpose of having a joy-ride in it, they should acquit him. *Page 314
The car was driven to the place to which it was taken at some time estimated at between seven and eight o'clock. It was found about twelve o'clock within two or three blocks of the spot from which it was taken. The State's inference of a taking by appellant, was deduced from the circumstances of his being seen in the immediate vicinity just before the car was taken, and of his being seen in the car so near the place from which it disappeared as to make evident the fact that this was almost at once after the car was taken. State witness Duncan, the night-watchman in Terrell, testified that between seven and eight o'clock he saw appellant going toward the spot from which the car was taken. He also said that a carnival was then in progress in Terrell, and that it opened its doors at seven-fifteen P. M. and that after seeing appellant at the place mentioned, he later saw him at the carnival. This latter testimony is in keeping with that of all of the defense witnesses who testified that they saw appellant at said carnival several times during that night and before twelve o'clock. Manifestly if the car was taken by appellant and in a short time thereafter was left by him at the place where it was later found, this would raise the issue as to whether he took it with the intent to permanently appropriate it, or merely for some purpose of temporary use. We think the disposition of the case upon the appellant's motion for rehearing correct.
The State's motion for rehearing will be overruled.
Overruled.