## Facts

- Earl Kellar urgently needed a gate to secure his pigs.
- The nearest lumber yard where Kellar could buy wood to build a gate was about 35 miles away.
- Kellar saw a gate lying on the ground on property controlled by Mr. Silcott.
- Based on prior dealings with Silcott, Kellar believed Silcott would not object to Kellar borrowing the gate temporarily.
- Kellar took the gate and used it to secure his pigs.
- The next day, Kellar asked Dale McBride to tell Silcott that Kellar had borrowed the gate and intended to return it after building a new gate.
- McBride was unable to locate Silcott.
- Silcott reported the gate as stolen, and the State charged Kellar with theft.
- Before trial, Kellar returned the gate to Silcott.
- At trial, Kellar maintained he lacked any intent to permanently take the gate because he meant only to borrow it and then return it.
- The jury charge did not instruct that intent to permanently deprive the owner was required for common-law theft.
- The trial court refused Kellar’s requested instruction based on Article 1343 of the Texas Code of Criminal Procedure concerning return of property before indictment.
- The jury convicted Kellar and assessed a fine and 15 days’ confinement.

## Issues

1. In a theft prosecution where evidence supports a finding that the defendant took property only to borrow it and return it, is it error to omit from the jury charge the requirement that theft includes an intent to permanently deprive the owner?
2. When the evidence shows the defendant returned the property before the indictment was returned, must the trial court, upon request, instruct the jury under Article 1343 of the Texas Code of Criminal Procedure regarding the legal effect of that return?

## Decision

- The Texas Court of Criminal Appeals reversed the conviction and remanded.
- The court held the jury should have been instructed on the required fraudulent intent for theft, including the concept that theft requires an intent to permanently deprive the owner, particularly where the defense evidence pointed to temporary borrowing and planned return.
- The court held the trial court also erred by refusing Kellar’s requested instruction under Article 1343 when the evidence raised that the gate was returned before indictment; the jury was entitled to have that statutory matter submitted.

## Legal Principles

- Common-law theft requires proof that the accused took property with fraudulent intent, meaning an intent to permanently deprive the owner; a temporary taking with intent to return may negate theft intent.
- A jury charge must submit each essential element of the offense as applied to the evidence and defensive theory presented.
- When evidence shows the accused returned the property before indictment, and the defendant requests it, the trial court must instruct the jury on Article 1343’s effect on the case, including the statutory limitation it places on punishment.
- Refusal of a properly requested jury instruction on a statutory matter raised by the evidence constitutes reversible error.

## Conclusion

Because the evidence raised Kellar’s claim that he only borrowed the gate and returned it, the jury needed instructions both on theft’s requirement of intent to permanently deprive and on Article 1343’s effect when property is returned before indictment; the trial court’s failure to give those instructions required reversal and remand.


Kellar v. State, 176 S.W. 723, 76 Tex. Crim. 602 (1915)