¶1There is not sufficient evidence in the-record that the defendant took the rails with fraudulent intent. He took them openly, in the day time, in the presence of witnesses, and made no effort to conceal the taking. There is evidence tending to show that the rails taken belonged to him, or that he believed they belonged to him, anda special charge pre' senting this phase of the case was requested by the defendant and refused by the court, and the defendant excepted and reserved his bill. We think the charge should have been given, because it is a part of the law of the case, and was not embraced in the charge given to the jury.
¶2The judgment is reversed and the cause is remanded.
¶3jReversed and remanded.