This conviction was for embezzlement by appellant, as bailee, of a certain horse, the property of one Lopez. Among others, the court gave the following instructions: "If the jury believe from the evidence that defendant borrowed the animal in question, and was to return it in two days, and did not so return it, but took it to Laredo, or other place, and it was taken away from him, such would be a fraudulent appropriation of the animal by the defendant, and you will find him guilty as charged; this to be considered in connection with the other facts of this charge." For two reasons this charge is essentially, fundamentally wrong: first, it is directly upon the weight of the testimony, as stated in the charge; second, as a matter of law, the court instructs the jury that such facts prove the fraudulent conversion. Whether the facts were or were not sufficient to show a fraudulent conversion must be found as a matter of fact by the jury, and not as a matter of law by the court.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.