Varas v. State
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 527 |
| Parties | VICENTE VARAS v. THE STATE. |
| Court | Texas Supreme Court |
APPEAL from Atascosa. Tried below before the Hon. John P. White.
Vicente Varas was indicted for theft of “a black and white-spotted sow hog,” the property of Jesse L. Ragsdale.
On the trial Ragsdale testified that about October 1, 1873, in Atascosa county, witness was returning home, and Defendant seemed very much surprised when I first went up to him.”
After several orders, and after threats of force, Varas let the pig loose, and invited witness to come to his (Varas') house and see if any other of witness' hogs were there. Witness went and found three other of his hogs in the possession of accused. The hog was not marked; witness identified it by its flesh marks.
Defendant proved that he had owned a sow that had pigs around and following her of about same age, and running in same range; that he bore a good character.
The court charged the jury in general terms under the statute, and refused the additional instruction asked by the defendant, viz:
“The intent is the gist of the offense; and if you believe from the evidence that the defendant had no criminal intentions, you will acquit him.”
The accused was convicted, and his punishment fixed at one year's confinement in the penitentiary. The motion for new trial was overruled, and defendant appealed.
No brief for appellant.
George Clark, Attorney General, for the State.
The defendant was charged with the theft of a hog, and under the evidence the real issue was not whether he took it, but whether he took it fraudulently or under an honest claim that it was his own. There was evidence that he claimed the hog, and there was some evidence tending to show that his claim might have been honestly made. The court in its charge gave the statutory definition of theft, but did not otherwise instruct the jury as to the distinction between theft and trespass. In behalf of defendant, the following instruction was asked and was refused: “The intent is the gist of the offense; and if you believe from...
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