¶1Counsel for defendant requested a special instruction, as follows: “If the jury believe, from the evidence, that the defendant purchased or traded for the animal alleged to have been stolen, giving value therefor, in good faith, then you will find defendant not guilty.” There was evidence tending to show that the defendant had purchased said animal, and the defendant was enitled to a direct, affirmative charge upon that issue. In the charge given by the court to the jury there is no such direct affirmative charge, but the issue is presented to the jury in a negative form, and in a connection which might have misled the jury. We think the above special instruction, or a similar affirmative one, instructing the jury that, if they believed, from the evidence, that the defendant purchased the animal, or if, from the evidence as to the purchase, they entertained a reasonable doubt that the defendant stole the animal, they must acquit him of the charge of theft. (Murphy v. The State, 17 Texas Ct. App., 645.) We are of the opinion that the failure of the court to give a proper charge upon the issue of purchase was material error, for which the conviction should be set aside.
¶2We are also of opinion that the court erred in not granting the defendant a new trial.' While the additional evidence disclosed by the affidavits accompanying said motion may not, in strictness, be regarded as newly discovered, still, we think fairness and justice required that a new trial should have been awarded. The judgment is reversed and the cause is remanded.
¶3Reversed and remanded.