In a criminal case, it is required that the charge of the court “shall distinctly set forth the law applicable to the case.” (Code Crim. Proc., art. 677.) “The law applicable to the case” has been construed to mean the case as made by the evidence. (Hudson v. The State, 40 Texas, 15; Priesmuth v. The State, 1 Texas Ct. App., 480.)
The sixth subdivision of the charge complained of is as follows: “If you find from the evidence that the parties made an agreement to the effect that the owner of the watch agreed to sell it to the defendant for the specified sum of fifty dollars; that the watch and roll of money were to be placed into the possession of other parties, and the watch to be delivered after the money delivered by the defendant had been counted by the owner of the watch; and if you further believe, from the evidence, that money of the represented value of fifty dollars was not delivered by the defendant; that he acquired possession of the watch and appropriated it without paying for it, according to the terms of the ostensible agreement; and that he did so by a false pretense and device, and with the fraudulent intent to deprive the owner of the value of the watch, such facts will be sufficient in support of the offense as charged.” A bill of exceptions was saved to this paragraph of the charge by the defendant. We have italicized that portion of it which, it is claimed, is not warranted by any of the facts proven in the case, viz: “and the watch to be delivered after the money delivered by the defendant had been counted by the owner of the watch.”
There is no evidence in the record that the agreement was that the watch should not be delivered until the owner had counted the money delivered by defendant. Lamson, the injured party, testified that the agreement was “that Clark should count out the money, to me,” and this is the only evidence as to the count*402ing of the money before delivery of the watch found in thq record. Now, it is in proof by all the witnesses that the watch was delivered before the money was counted by Lamson. Under the charge of the court, the delivery of the watch before Lamson counted the money would be both wrongful and unlawful, as would also have been its possession by defendant—the condition , precedent not having been complied with. This was making the illegality and wrongful possession by defendant depend upon a different circumstance, contract or condition to the one stated by the witness as that agreed upon by the parties.' We can not say how far this error in the charge was calculated to injure the rights of the defendant. It was not warranted by the case as made by the proofs, and it was promptly excepted to at the time by defendant, because there was no evidence to support it. (Code Crim. Proc., art. 686.)
Opinion delivered May 5, 1888.The other matters complained of are of a character not likely to arise upon another trial. For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.