In explaining the meaning and comprehensiveness of the word “taking,” as used in our statutory definition of theft, Article 737 of the Penal Code provides, amongst other things, that “if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” This *302is where the possession of property has been acquired lawfully by the taker,—that is, where the owner consents to part with the possession of his property, and the taker obtains possession by virtue of such consent. In such cases the taker may be guilty of theft, notwithstanding such lawful possession, by one or the other of the two modes mentioned in the statute; that is, first, by his having obtained such possession by any false pretext which induced or deceived the owner into surrendering the possession to him; or, second, where he has obtained possession from the owner and at the time intends to deprive him of the value thereof and appropriate the property to his own use and benefit. Either one of these modes of acquisition of property will separately constitute theft under our code. (Hornbeck v. The State, 10 Texas Ct. App., 408.)
Mow, in the case before us, the main, and indeed the only material question, is whether the facts shown in this record constitute theft. It is in proof that all the money alleged to have been stolen was loaned by the prosecutor Tolan to the accused, upon his promise that he would return it or give it back to him when he had finished the game of cards which he and others were playing at the time the money was so loaned.
The" court instructed the jury that, if they “believed from the evidence that the defendant and the three other parties jointly indicted with him entered into a conspiracy to fraudulently obtain from M. A. Tolan the possession of his money, with the intent, when such possession should be obtained, to deprive said Tolan of the value thereof, and appropriate the same to their own use and benefit, and that, acting together in pursuance of a common design to carry out such conspiracy, the said Porter, Wilson, Redding and Bagley, or either of them, represented to said Tolan that they desired his money for temporary use in a game in which they were then engaged, or about to engage, and that they would return him the same money they might receive from him when such game was ended, and that, upon such representation and promise, the said Tolan delivered to said parties, or either of them, the money described in the indictment for such temporary use in such game, and not intending to part with his title to the same, but understanding that he was to receive the same money back when such game should be ended, and that, when such representations and promise were made by said Porter, Wilson, Redding and Bagley, and when they so received said money from said Tolan, they did not *303intend to comply therewith, but made the same for the purpose of getting possession of said money, with the fraudulent intent at that time, when such possession should be so obtained, to deprive the said Tolan of the value thereof and appropriate the same to their own use and benefit, and that the money so received by the said Porter, Wilson, Redding and Bagley was the same money described in the indictment (e. g., describing it as it was described in the indictment), and that said money was the corporeal personal property of said M. A. Tolan, and was over the value of twenty dollars, and that after the possession of said money was so obtained by said Porter, Wilson, Redding and Bagley from said Tolan, the same was appropriated by them to their own use and benefit, without the consent of said Tolan and with intent to deprive him of the value thereof, you will find the defendant, William Porter, guilty of theft of property over the value of twenty dollars, as charged in the indictment, and assess his punishment,” etc.
Opinion delivered April 16, 1887.We are of opinion this instruction presented fully and accurately the law of the case in conformity with the spirit and intent of the statute. (Penal Code, art. 727; Dignowitty v. The State, 17 Texas, 521.) In the special instructions which were given, taken in connection with the main charge, the rights of appellant were carefully guarded as to every phase of his defense made by the evidence. Nor was it error to refuse the special instructions which the court declined to give.
This is a novel case of theft, but in our opinion a case of theft nevertheless clearly made out under the law and the evidence, as was found by the verdict and judgment of the lower court. We have found no reversible error in the record on this appeal, and the judgment is affirmed.
Affirmed.