The record shows that a different oath was administered to the jury from that prescribed by law. This, as has been decided heretofore, is error, for which the judgment must be reversed. (Arthur v. The State, 3 Tex., 405; Martin v. The State, decided during present term.) Where it does not affirmative appear from the record that a different oath from that prescribed has been administered, it will be presumed in favor of the regularity of the proceeding in the District Court, that the jury were properly sworn. But the oath administered in this case is set forth in the record, and no presumption can be indulged to impeach its verity.
Appellant was indicted for theft, under art. 766 of the Criminal Code, for willfully taking into possession, and *192driving or removing from their accustomed range, live stock not his own, without the consent of the owner, and with the intent to defraud the owner thereof. The next article of the code, it must be observed, provides that, unless the willful driving of such stock from its accustomed range without the consent of the owner is done under such circumstances as to constitute theft, the party driving such stock is guilty of misdemeanor. It plainly appears, from the reading of these two articles of the code', that the intent with which the acts were done determines the grade of the offense. If the stock are taken and driven from their range without the owner’s consent, with intent to defraud, it is theft, and punishable as prescribed in art. 766a; but if this is done without the intent to defraud the owner, it is misdemeanor, to be punished by fine not exceeding double the value of the stock taken and driven from their range. And since, unquestionably, appellant, if not guilty of the more aggravated offense, might, under an indictment for it, have been punished for misdemeanor, if it appeared that this was the offense of which he is guilty, it was of the utmost importance for him to show, if able to do so, that the acts done by him were not done with the intent to defraud the owner of the stock. And we are of the opinion that the instructions and directions given by him to his employees while collecting the stock, as shown by the bill of exception, should have been admitted in evidence, to have aided the jury, in connection with all the facts" and circumstances of the case, in coming to their conclusion as to the intent and purpose of appellant in the premises.
We are also inclined to the opinion the court should have submitted the question of intent to the jury, as asked in the instruction requested by the appellant. But if the evidence before the jmy did not warrant the charge asked, unquestionably, if the evidence which was, as we have said, improperly excluded, had been admitted, it would have *193been then strictly applicable, and should have been given. This shows more plainly the injury done appellant by the exclusion of the testimony.
The judgment is reversed and the case remanded.
Reversed and Remanded.