On a former day of this term this case was reversed and remanded, and the State had filed a motion for a rehearing, and in the motion insists that the modification by the court of the special charge requested by appellant was a correct presentation of the law, if appellant found the property, and at the time he assumed possession he intended to appropriate it to his own use. The authorities cited by the State correctly present the law on this state of facts, but does the evidence suggest even in the remotest degree an accidental loss of the property by anyone, and an accidental finding of the property by appellant? If so, then the authorities cited by the State on its motion for a rehearing would be applicable, otherwise they have no bearing on the case. The State endeavored to show by facts and circumstances that appellant was in the town of Crosby when the freight train arrived in that town, twenty miles east of Houston; that the car in which the property was situate was opened at that point; that between Crosby and Houston, at a point about six miles east of Houston, about twelve cases of lard, or lard compound, were taken out of this car and dumped on the right of way; that in about two hours from this time appellant came driving from the direction of Houston to the point where the packages were on the right of way and commenced to load the boxes of lard in a wagon; that the moon was down, and yet appellant went direct to the place where the lard was on the right of way and commenced to gather it up, when he was arrested. There is nothing in this evidence to suggest accidental loss and accidental finding of the property, and the law applicable to such a state of case should not have been submitted to the jury, because there was no basis in the evidence upon which to predicate such a charge. Again, if it should be conceded that there is a faint trace of evidence upon which to predicate such a charge, then the evidence shows that appellant had placed in the wagon but five cases of lard; that the officers arresting him had him place therein five additional cases of lard; that these ten cases of lard were only of the value of $73.90. There was a question in the evidence, if appellant had no connection *Page 524 with taking the lard from the car, as principal or otherwise, as to whether, at the time of his arrest, he had taken possession of more than five cases of lard, which would have been of value less than $50. Appellant requested the court to submit the issue of misdemeanor theft, and complains in his motion for a new trial of the failure of the court to do so. If the issue was to be submitted to the jury that appellant had found lost property, and by appropriating it to his own use, was guilty of theft, then the issue was made by the evidence whether or not he had reduced to possession and appropriated property of the value of fifty dollars or over, and an appropriate charge on misdemeanor theft should have been given, as well as felony theft. And if this issue is in the case (which we do not think the evidence justifies) the failure to submit the issue of misdemeanor theft would result in a reversal of the case, for the evidence does not make it clear whether or not the amount of property he had taken possession of amounted to fifty dollars in value.
The motion for rehearing is overruled.
Overruled.