The opinion
Broyles, C. J.
The accused was convicted of carrying away, with intent to steal, one barrel of pine gum of the value of five dollars. The accused, in his statement to the jury, admitted carrying away and selling the gum, but contended that under liis contract with the prosecutor he had the right to take and sell it, or at least he honestly so believed; and his contention was supported by some of the evidence adduced, and *53 by the circumstances of the transaction, the taking and selling having been done openly and in the daytime. Under all the facts of the ease the court erred in omitting to instruct the jury, without request, upon the defense set up by the accused, and in failing to submit to them in that connection the question whether the defendant, in carrying away the gum, had the intent to steal it. See Smith v. State, 109 Ga. 479 (3) ( 35 S. E. 59 ); Glaze v. State, 2 Ga. App. 704 (2, 3) ( 58 S. E. 1126 ).
Decided April 3, 1935.
W. 0. Hodges, for plaintiff in error.
W. F. Mills, solicitor, contra.
Judgment reversed.
Maelntyre and Guerry, JJ., eoneur.