¶1The material inquiry in this case, presented by the evidence, was the intent of the defendant at the very time of talcing the pocket-book and money. Was her intent at that time fraudulent? If not, she is not guilty of theft, although she after-wards appropriated the property to her own use. (Reed v. The State, 8 Texas Ct. App., 40; Warren v. The State, 17 Texas Ct. App., 207.) Whilst the charge of the court submitted this issue to the jury in a general way, it did not apply the law applicable to the facts clearly, pointedly and affirmatively, so that the jury could easily and unmistakably comprehend the nice distinction which the law makes as to the time of the fraudulent intent.
¶2To supply this defect in the charge the defendant, by counsel, requested two special instructions which clearly and pertinently presented the law applicable to the evidence. These special instructions were refused, and this action of the court is presented by bill of exception. It was error to refuse to give the special instructions, and for this error the judgment will be reversed and the cause remanded for a new trial.
¶3Reversed and remanded.