A point is stressed in appellant's motion for rehearing which we conclude presents an error demanding a reversal. The record shows that an original brief for appellant was filed in this court on November 26, 1941. What may be denominated a supplemental brief — although bearing no endorsement indicating what it might be — was filed on December 3, 1941. The question presenting error was stressed in said supplemental brief, but was entirely overlooked and not mentioned in our original opinion, said supplemental brief possibly escaping our attention altogether.
The indictment charges appellant with receiving and concealing two Underwood typewriters, one Burroughs adding machine and one Moore calculating machine. Upon the trial the State produced in court the Monroe calculating machine and one long carriage Underwood typewriter, and introduced evidence as to their value. No evidence is found in the record regarding the value of the other typewriter or the adding machine, so they pass out of the case insofar as the question at issue is concerned.
The State's witnesses testified that the two articles in court had a market value, and that the value was more than fifty *Page 578 dollars. The witnesses for appellant just as positively testified that said two articles had no market value, and that their replacement value was less than fifty dollars. Thus an issue was clearly raised upon which the case turned as to whether appellant, if guilty, should be punished for a felony or a misdemeanor. The court realized that the question of misdemeanor punishment had been raised, but the only instruction upon the subject was to the effect that if the jury had a reasonable doubt as to whether the property received by appellant was of less "value" than fifty dollars to assess his punishment as for misdemeanor. Nothing was said by the court as to the cash market value, nor as to replacement value. Appellant requested a number of special charges which would have informed the jury that the standard by which they were to ascertain the value of the property was its market value — defining same — but if the property had no market value then the standard was the replacement value — defining it — and also that if the jury had a reasonable doubt as to whether the property had a market value then they would measure the value by the replacement value of said property; and that if the jury should find the standard of value to be the replacement value, and that such latter value was less than fifty dollars, then appellant should not be convicted of felony theft. These charges were all refused.
It is clear that if the jury had accepted the evidence of appellant's witnesses that the property had no market value they were left entirely without information as to the law controlling the subject.
Either the charges requested should have been given or others of similar import, advising the jury as to the law by which they were to be governed. See Smith v. State, 97 Tex. Crim. 656,263 S.W. 918 and cases therein cited, among them being Martinez v. State, 16 Tex. Cr. App. 122, which seems much in point; Holmes v. State, 126 Tex.Crim. R., 72 S.W.2d 1092; McKnight v. State, 134 Tex.Crim. R., 115 S.W.2d 636.
The motion for rehearing is granted, the order of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded. *Page 579