Reno v. State , 25 Tex. Ct. App. 102 ( 1888 )

Willson, Judge.

It appears in evidence that at the same time and place of the theft of the horse named in the indictment, another horse, together with a saddle, was stolen, and the evidence which connects the defendant with the theft of the horse named in the indictment connects him also with the theft of said other horse and with the saddle.

While this evidence of the theft of said other horse and the saddle was competent, and was not objected to by the defendant, still it was incumbent upon the court, in its charge to the jury, to explain the purposes for which such testimony was admitted, and to instruct and direct the jury that it could only . be considered for those purposes', and that the defendant could not be convicted under this indictment for any other theft than the theft of the horse named in the indictment.- Such a charge constituted a part of the law of the case, and the failure to give it is fundamental error. (Mayfield v. The State, 23 Texas Ct. App., 645; Wheeler v. The State, 23 Texas Ct. App., 598; Davis v. The State, 23 Texas Ct. App., 210; Kelly v. The State, 18 Texas Ct. App., 262.) The Assistant Attorney General in his brief confesses this error in the charge, and because of such error, the judgment must be reversed and the cause remanded.

Opinion delivered February 25, 1888.

We deem it unnecessary to discuss and determine the errors complained of in the brief of counsel for defendant, as they are of a character not likely to arise on another trial. The judgment is reversed and the cause is remanded.

Reversed and remanded.