A witness in behalf of defendant testified that the beef steer was brought to defendant’s house in his absence, . butchered, and the meat placed in defendant’s smoke-house, by a Mexican named “ Parse.” In his charge to the jury, the trial judge *301did not affirmatively instruct with reference to the phase of the case presented by this testimony. To supply this omission in the charge, defendant’s counsel requested the following instructions, viz.:
[Opinion delivered February 13, 1886.]“ 1st. To convict the defendant in this case the evidence must show to your satisfaction, beyond a reasonable doubt, that the defendant took, or was concerned in taking, the animal named in the indictment; that is to say, he must have been concerned in the original taking from the possession of the owner; for, if the evidence shows that another person took said animal and put or left it in possession of the defendant, the defendant cannot, under the indictment in this case, be convicted, and if he was not concerned in the original taking it is your duty to acquit.
“2d. Theft and receiving goods or property knowing the same to have been stolen are two different offenses, and a person cannot be tried for one and convicted of the other. Therefore, if the Mexican ‘ Parse,’ or any one else, took the animal named in the indictment, and the defendant did not assist in the taking, he cannot in this case be convicted, though he received, hid, and used the animal so taken, though he knew it was stolen; and in such case, or if you have a reasonable doubt on this point, you should acquit the defendant.”
The court refused to give these or any other similar instructions. We must hold that this was error, for which the conviction must be set aside. The requested instructions were demanded by the evidence, and embodied the law applicable to the particular phase of the case presented by the testimony of the witness before referred to. It was not for the trial judge, or for this court, but for the jury alone, to pass upon the credibility of this testimony. It was the imperative duty of the court to submit to the jury, affirmatively, the law applicable to such testimony, leaving to the jury the duty of determining the credibility of the witness and the weight to be accorded her statements. ( White v. The State, 18 Texas Ct. App., 57.)
Several other supposed errors are complained of by counsel for defendant, but, if they be errors, they are of a character not likely to occur on another trial, and we will not take time to consider them. Because of the error of the court in failing to instruct the jury as requested by defendant, the judgment is reversed and the cause is remanded.
Reversed and remanded.