We see no reason for debating the proposition as to whether Douthit, the owner of the alleged stolen property, consented to the taking of same at the time that he directed appellant to haul away the cotton seed from the gin. Under authorities too numerous to mention it is the settled law of this State and statutory, that one who takes property of another with the owner's consent, but intends at the time he takes it to appropriate it to his own use and benefit, and does so appropriate it, is guilty of theft.
This is the real point in the case before us. As said substantially in our original opinion, after appellant had hauled two loads of cotton seed from Douthit's gin, and delivered them to the parties to whom Douthit had been accustomed to sell seed, it is shown by the statement of facts in this case that appellant and the man who was operating with him, Sparks, after delivering the second load of seed "Went out to the beer joint out north of Stamford. We drank several bottles of beer and decided to go back to Lueders and get the last of the seed, as Mr. Douthit had told us to get the last of the seed. We had decided to take this last load to Hamlin and sell them ourselves and keep the money. We got into Hamlin about 4:00 o'clock in the morning of the 22nd, and took the seed to the Hamlin Cotton Oil Mill and sold the seed for $78.10." The above quotation is taken from appellant's confession. The ordinary grammatical construction of the English language makes plain the fact that when appellant and his companion left Stamford, after being out at the beer joint, that they "had *Page 35 decided" to take the remainder of the seed to Hamlin and sell them and keep the money. Giving effect to this statement of appellant, which is borne out and corroborated by the subsequent events, — they then proceeded to Lueders, and took the remainder of the seed and carried them to Hamlin and appropriated them by selling them to the Hamlin Cotton Oil Mill.
We think the charge of the court amply protected appellant's rights in that he told the jury that even though they believed the cotton seed were taken from Douthit's possession by the defendant, they could not convict him unless they believed from the evidence beyond a reasonable doubt that at the time he took them he intended to deprive the owner of the value of same, and that he did appropriate them to his own use. We deem further discussion of the propositions involved unnecessary.
The motion for rehearing is overruled.
Overruled.