Appellant was convicted of theft from the person. The State's proof is, that appellant seized the money alleged to have been taken from the hand of the owner and ran away with it. Appellant's proof was, that the owner delivered to him the bill to have changed, and that he went into a house to have it so changed, and there conceived the idea of appropriation, and did appropriate it. The appellant asked and was refused a special charge, to the effect, that if the said bill was delivered to him as shown by his evidence, he could not be convicted of theft from the person, although he afterwards fraudulently appropriated it. This refusal was made a ground of the motion for a new trial, and is here assigned as error. This charge should have been given. It presented his defensive theory pertinently, and in direct affirmative terms. Where there is a defect in the charge which is excepted to at the time, or where a special charge is requested and refused, which is pertinent to the testimony adduced on the trial, the judgment is to be reversed. On the other hand, if such exception be not reserved at the time, nor special charges asked covering the defect in the courts charge, a different rule prevails. In this latter state of case the defect in the charge, or failure to give the requested instructions, viewed in the light of the charge given and the statement of facts, must be calculated to injure the rights of the accused. Bishop v. The State, 43 Tex. 390; Willson's Crim. Proc., sec. 2363. The matter of the separation of the jury will not arise upon another trial; therefore that question is not discussed.
For the refusal of the court to give the requested charge, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring. *Page 122