Appellant was convicted of theft of cattle, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.
Appellant assigned a number of errors, but in the view we take of the case it is only necessary to discuss one. The indictment alleged appellant committed the theft of one head of cattle, the property of an unknown owner. The evidence on the part of the State showed that said animal was a stray, and was well known in that community as a stray. Appellant claimed that the steer belonged to his father; that a year or two previously, when a calf, he had bought it, with some forty or fifty head of cattle, from certain parties in Jack County; that the steer had gotten away and had been gone some time; that a short time before the alleged theft the steer was found, and appellant, under the instructions of his father, drove said steer up, and they carried it to the Indian Territory, the theory being that the steer in question was the property of his father, or at any rate he took him in possession believing it was his father's steer. On this defense the court charged the jury as follows: "If you believe from the testimony that the property described in the indictment was the property of F.L. Darnell, the defendant's father, or that defendant took the one cattle as described in the indictment under a fair claim or color of title, for his father, F.L. Darnell, then, in either event, you will acquit defendant." Appellant objected to this instruction, and requested the following charge: "If the evidence fails to show that defendant believed the property at the time of taking was not the property of F.L. Darnell, you will find defendant not guilty." The charge on this subject given by the court restricted appellant's defense to a superior title on the part of his father, *Page 88 or a fair claim or color of title. Of course, it will not be seriously insisted that the question of appellant's guilt should be made to depend on whether or not the title to the animal was in appellant's father. All the authorities hold that, notwithstanding the superior title may be in the prosecutor, still, if the property was taken under a claim of title, and the party so taking honestly believed that he had authority to take the animal in question, it will be a good defense. See White's Ann. Penal Code, sec. 1505, subdiv. 4, and authorities there cited. However, it is contended that the instruction given by the court to the effect that, if appellant took the animal under a fair claim or color of title on behalf of his father, this would be tantamount to an instruction predicated on honest belief on the part of appellant that the animal was his father's. We are not informed by the court what he means by "fair claim or color of title," but these terms appear to be treated by the court as synonymous. A fair claim might accord with an honest claim, or it might not. It might be fair on its face, but still be fraudulent. What is meant by "color of title," as to personal property, is not defined. With reference to real estate, under the statute of limitations, the courts have met with some difficulty in construing the statute on the subject. The statute, in defining "color of title," defines it as a "consecutive chain of transfer down to the person in posssession, without being regular, as if one or more of the memorials or muniments be not registered, or not duly registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty," etc. Rev. Civ. Stats., art. 3341. If this definition is applied, of course, we are met with difficulty, because a party may honestly claim title to an animal, believing it is his own, when he has no title whatever to it. He is simply mistaken as to the identity of the animal in question. We know of no better rule on the subject than that which has heretofore been laid down by this court, — that is, if a person accused of taking property can show that he honestly believed it was his, or that he had authority to take the particular property from its owner, or the person whom he believed was its owner, then his defense is complete; and it should be submitted to the jury in this mode, in order that they may determine the fraudulency of the taking, on the one hand, or the honest mistake under an honest belief, on the other. And a charge that bases a defense of this character on title, or a fair claim of title, or color of title, is tantamount to telling the jury that there must be some sort of title on the part of the taker to the property, whereas in fact there need be no title at all. It is only necessary that there be an honest claim of right; that is, the party must reasonably believe that the property is his, or that he has authority from the owner to take such property. It follows, therefore, that the charge given by the court was erroneous, and that the charge requested, or some such charge, should have been given. For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 89
ON MOTION FOR REHEARING.