There is but one question that need be considered. There was evidence tending to prove that appellant purchased the mare from one Butler. Applying the law to this evidence, the court charged the jury: "In the taking of property, in order to constitute theft, it must be taken fraudulently. Therefore, if you find from the evidence that defendant bought the animal mentioned in the indictment from one Butler, you will acquit the defendant; and this, although you may believe that Butler acquired the animal unlawfully." Counsel for appellant objected to this charge, because "the latter part of the charge is not full and complete and sufficient, in this: It fails to instruct the jury that defendant would not be guilty, although they may believe that Butler acquired the animal unlawfully, and that the same was known to defendant at the time of said purchase."
We have frequently held, and still hold, under a charge of theft, there being proof that the accused was in possession of the stolen property recently after the theft, and the accused relying upon proof of purchase, or that he obtained, in any manner, possession of the property from another, to instruct the jury, that they must believe that the purchase or acquisition from another must be in good faith, was wrong. But it does not follow, because we have thus held in relation to such charge, that a charge under such a state of case would be erroneous because it failed, in terms, to instruct the jury, that if they believed that the accused bought the property knowing it to have been stolen they should acquit. The vice in the charges held by this court to be erroneous was in requiring the jury to believe that the purchase was in good faith, when in law the purchase or acquisition of the property from another would defeat a conviction for theft, whether in good or bad faith. If believed by the jury, it would establish the fact that the accused was not the taker of the property, and hence not guilty of theft.
Now, the charge under discussion requires the jury to acquit appellant if they believe from the evidence that he bought the mare from Butler, though they may believe that Butler had acquired her unlawfully. Acquisition of the mare by theft is certainly unlawful. Therefore, if the jury had believed that Butler had stolen the mare and sold her to appellant, obeying the instructions from the court they would have acquitted the appellant. But they were not told to acquit though he knew Butler had stolen the mare. True. But were they instructed to convict if appellant had knowledge of the theft? They were not, and beyond question, the instruction given authorized an acquittal though defendant had knowledge that Butler had stolen the mare. But it may be contended that the word "bought" implies that the purchaser acquired title, and *Page 49 as the mare was stolen, and as defendant may have known this, he acquired no title to "her, and therefore he did not buy her; that this view of the transaction may have been taken by the jury, and hence the necessity of the instruction desired by appellant. In article 10 of the Penal Code it is said: "Words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed." Now, we venture the assertion that there is not one juror in five hundred who would not have used the word "bought" or "purchased" relative to this transaction between appellant and Butler, though appellant may have known that Butler stole the mare.
There is no error in the charge. The judgment is affirmed.
Affirmed.