T. A. Williams v. The State, 22 Tex. Ct. App. 332

White, Presiding Judge. On a former appeal in this case (19 Texas Ct. App., 409), the prosecution was dismissed on account of the omission of an essential averment in the information.

By striking out and eliminating as surplusage certain unnecessary statements and averments, we are of opinion the present information can be held good for the theft of seven hundred and thirty feet of lumber belonging to Vincent, Abercrombie and Reeves, as trustees, etc., which was taken from the possession of one Stivers, holding the same for the owners, by means of a false and fraudulent pretext, to wit, that defendant, by virtue of a certain due bill, was authorized to demand and receive the same. Appellant’s counsel is mistaken in asserting that the venue of the offense was not proven on the trial.

Abercrombie, the second witness for the prosecution, says, “our lumber was at the Boss' mills, in Wood county.” The witness Vincent says, “I live in Brooklin school community, in Rains county. I saw defendant pass my place in Rains county about the middle of December, 1884, with some lumber; he was driving one team and I think a negro was driving another.” And the witness Fleuellen says .that in a conversation had with defendant, defendant said: “ I went down to the mill and got that lumber; now let them kick.” “He pointed out the lumber at the widow Williams’s, in Rains county, Texas.

I saw the lumber.” Several bills of exception were saved by defendant to the admission of evidence. They appear in the main to be unimportant and immaterial. After the evidence was through, defendant asked the following special instructions, which were refused, and exception thereto duly saved, viz: “1. If you believe from the evidence that defendant took the lumber he is charged with stealing, openly and without any effort at concealment or intent to steal, he would not be guilty of theft. “2.

If the defendant took and held the lumber he is charged with stealing in order to secure him in the payment of an indebtedness due him from the Brooklin community, he would not be guilty of theft. “3. If you believe that the trustees of the Brooklin school community placed defendant in possession of the lumber charged to have been stolen [or the money with which the lumber was purchased], and defendant subsequently converted the lumber to his own use, he would not be guilty of theft, and you should acquit him.” Opinion delivered November 17, 1886.

The first two of these instructions were unquestionably the law, as was also the third instruction, after striking out the words we have embraced in brackets. These instructions were moreover, directly and pertinently applicable to the facts. No charge of any character, written or oral, appears to have been given by the court. For error in refusing to give the special instructions of defendant, the judgment is reversed and the cause remanded. Reversed and dismissed.