Appellant was convicted of the theft of eight gallons of syrup,—a misdemeanor.
The charge of the court was erroneous from its inception to its close. That which was asked by counsel for defendant and refused by the court was the charge demanded by the case made by the evidence. Ho objection was made to the charge given, nor did defendant except to the action of the court in refusing to give the charges requested by him. This being a misdemeanor, it was incumbent on defendant to except in both instances, and reserve his bills. Hobbs v. State, 7 Texas Ct. App. 117, and authorities there cited.
The verdict in this case is not supported by the evidence. The facts not only fail to show a fraudulent intent, but most evidently negative such intent. (The Reporter will insert the evidence.)
The evidence being insufficient to support the verdict, the court erred in not awarding a new trial, for which the judgment is reversed and the cause remanded.
Reversed and remanded.