If there be evidence tending to show that the taking was not with fraudulent intent, but only tortious, it is the duty of the court to submit that issue distinctly to the jury for its consideration ; and their finding against the prisoner upon such issue will not be disturbed, unless in the absence of testimony tending to support it. Upon the trial of this cause the defendant had the benefit of very explicit instructions upon this point, and we are not prepared to say that the jury did wrong in concluding that he was guilty of theft, or that such finding was without evidence to support it. Poage v. The State, 43 Texas, 454 ;. Camplin v. The State, 1 Texas Ct. App. 108 ; Miles v. The State, 1 Texas Ct. App. 510 ; Hamilton v. The State, 2 *593Texas Ct. App. 494; Shoefercater v. The State, 5 Texas Ct. App. 207.
The animal seems to have been taken from the actual possession of the owner, and was not upon the range. An instruction, therefore, as to the penalty for wilfully using, driving, or removing the animal from its accustomed range would have been manifestly inappropriate, and not applicable to the case. Appellant cannot complain at the action of the court in instructing the jury, as every charge asked by him seems to have been given, —the district judge having adopted a practice which could be followed with advantage in most trials for violations of the criminal law, and that is, to give every instruction a defendant may ask, unless it is palpably and manifestly not the law applicable to the case, no matter if the main charge has already instructed the jury upon the very point substantially as asked.
The amendment of the indictment was as to matter of form simply, and with the amendment as made, it seems to be free from objection.
Affirmed.