On Hearing After Remandment. It would seem that the majority opinion of the Supreme Court (upon certiorari from this court) has declared that error prevailed in the following statements of the law by the trial court in his general oral charge to the jury:
(1) "And I charge you that if you believe from the evidence in this case that these cattle of Mr. Ganguet's were in a large pasture, and were driven from a large pasture, and surrounded by and embraced in a tract of fifteen hundred acres approximately there was a four hundred acre pasture, and if you believe this defendant drove those cattle into a cattle pen inside of the four hundred acre lot, and closed the gap, why, that would be a taking and a carrying away as contemplated by the law."
(2) "After you consider all the evidence, if you are satisfied beyond a reasonable doubt that there was a conspiracy between the defendant and the other parties, and that the cattle were penned, and it was done with the purpose to steal them, it matters not about who the owner of the cattle and it matters not if the owner of the cattle didn't lose anything by it, the asportavit and carrying away was contemplated when the cattle were wrongfully and corruptly put in the cattle pen."
While it was our view that the applicable law was fully elucidated by the trial court and that no substantial prejudice to the defendant intervened by the foregoing excerpts, when read and considered in connection with the entire charge, oral and written, the Supreme Court has indulged a contrary conclusion, so we must respectfully abide thereby (Code 1940, Title 13, Section 95). Accordingly, a reversal of the judgment must be entered.
As to the pertinent principles of law invoked and discussed in our original opinion, above, it appears that the Supreme Court is in accord.
Nevertheless, we deem it proper, as guide to the lower court in another trial, to point out that the evidence is fully sufficient to require submission of the issue of guilt to the jury. There is no warrant for a contrary conclusion.
Reversed and remanded pursuant to the dictates of Section 95, Title 13, Code 1940.