Appellant was charged, under article 877, Penal Code, with theft, in that he converted a certain horse intrusted to him as bailee. He received the horse in Victoria County, rode it into De Witt County, and there disposed of it. His defensive theory was that he had permission of the owner to dispose of the horse. Exception was reserved to the charge because it failed to instruct the jury that the fraudulent intent in converting the property was necessary to the conviction. An inspection of the charge sustains this contention. After charging the jury with reference to the necessary possesion of defendant by virtue of the contract of borrowing, the court informed the jury: "And you further believe that defendant converted said horse to his, defendant's own use without the consent of the said Eugene Porter, with the intent to deprive the said Eugene Porter of the value of said horse, then you will find defendant guilty," etc. The fraudulent conversion of the horse is a necessary element to constitute this crime, and without it there would be no offense, and the jury should have been so informed. This omission is fatal and requires a reversal.
Exception was reserved to this section of the charge, to wit: "If you believe from the evidence that said Eugene Porter authorized or gave his permission or consent to defendant to sell or otherwise dispose of said horse, or if you have a reasonable doubt thereof, you will acquit defendant." It is contended this changes the reasonable doubt, and places the burden upon the accused. We do not so understand it. If the owner gave appellant his authority or permission to sell, or in any manner dispose of the horse, this would meet the contention of the State that the conversion was fraudulent. Now, if there was a reasonable doubt of this, then appellant was entitled to an acquittal; and, as we understand this charge, it gave this phase of the law in accordance with our statutory provisions. We do not understand how a reasonable doubt of an authority would throw the burden on appellant, when the jury are informed if there was such reasonable doubt, they should acquit. If the jury had been informed that, in case they had a reasonable doubt of the fact of consent or permission to dispose of the horse they would convict, appellant's contention would be correct. But such is not the charge.
For the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 253