This is a second appeal taken in this case. (See 7 Texas Ct. App. 283.) At the trial in the court below, as shown in this case, the defendant requested the court to charge the jury “ that the husband has the control, care, and management of the personal property of the wife (whether acquired before or after the marriage relation) during the marriage relation. 2. If the jury believe from the evidence that Mrs. M. M. Sigler (formerly Mrs. M. M. Mathews), wife of the defendant, owned the ‘22’ brand, and that she had horses running in the range in that brand, and that defendant did take up off the range the animal described in the bill of indictment, and which defendant is charged with stealing, under the belief that it belonged to his wife, M. M. Sigler, formerly M. M. Mathews, they ■ will find the defendant not guilty.” This instruction the court refused, for the reason, as stated, “ because given in substance, so far as applicable to the case, in the general charge.”
As to its applicability to the case there can be no sort of doubt, because the defence was predicated alone upon the hypothesis that the animal was taken under the belief by defendant that it was the property of his wife. It is true the court had charged the jury that if they “ found from the testimony that the defendant did take the mare mentioned in the indictment, but if you further find that defendant took said mare under a bona fide, honest, though mistaken belief that said mare was the property of the wife of the defendant, without any intent on his part to steal said mare, then you will find the defendant not guilty.” Still, the refused instruction was the law, and was calculated to call the attention of the jury to the real issue under the *429evidence in a manner much more pointed, pertinent, and direct than did the charge of the court, and we are not satisfied that the defendant was not prejudiced by its refusal. Bray v. The State, 41 Texas, 203 ; Varas v. The State, 41 Texas, 527; Smith v. The State, 7 Texas Ct. App. 382. See, specially, Banks v. The State, 7 Texas Ct. App. 591, and 5 Texas Ct. App. 135. Also, Pocket v. The State, 5 Texas Ct. App. 552, and Summers v. The State, 5 Texas Ct. App. 365.
No error was committed in permitting the deputy-sheriff to testify as to what passed between defendant and himself before defendant was arrested.
Because we think, under the peculiar circumstances of this case, that the court erred in refusing the special instruction asked by defendant, the. judgment is reversed and the cause remanded.
Reversed and remanded.