On the trial below, the court was requested by the defendant’s attorney to charge the jury “ that if they believe from the evidence that the defendant got possession of the property with the consent of the owner, without using any false pretext to get possession of the same, he is not guilty of theft, and you will acquit.” This charge was refused.
The jury were properly instructed as to the law arising upon that state of facts in the latter portion of the fifth paragraph of the general charge, as follows: “But if the taking, though originally lawful, was obtained by any false pretext, or with an intent to deprive the owner of its value, and to appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” Penal Code, art. 748 (Pasc. Dig., art. 2385); Berg v. The State, 2 Texas Ct. App. 148; Quitzow v. The State, 1 Texas Ct. App. 65. If the possession of the property alleged to have been stolen was *175obtained in either of the two ways named in the latter clause of article 748—that is, by means of any false pretext, or with the intent to deprive the owner of the value thereof, and to appropriate it to his (the taker’s) own use, and, in either event, the property be shown to have been so appropriated, and these facts and circumstances be shown—the transaction would be theft; the offense being rendered complete by the appropriation of the property in the manner set out in the article referred to.
„ We are of the opinion that the general charge was the law of the case, as made by the testimony, and that the court did not err in refusing the charge asked by the defendant’s counsel.
In cases of this character the criminality consists in the intent of the party at the time of taking the property. Whether the intent was fraudulent or not was to be determined by the jury from the evidence adduced, under proper instructions by the court.
There was an abundance of evidence to show that, when the accused left the service of his employer, he then intended to deprive the owner of the property alleged to have been stolen, and to appropriate it to his own use, and, further, that he did in fact so appropriate it. The proof was sufficient under the law to warrant the conviction, the charge was in every respect the law of the case, and the judgment must be affirmed.
Affirmed.