The defendant was charged with the theft of a hog, and under the evidence the real issue was not whether he took it, but whether he took it fraudulently or under an honest claim that it was his own. There was evidence that he claimed the hog, and there was some evidence tending to show that his claim might have been honestly made. The court in its charge gave the statutory definition of theft, but did not otherwise instruct the jury as to the distinction between theft and trespass. In behalf of defendant, the following instruction was asked and was refused: “ The intent is the gist of the offense; and if you believe from the evidence that the defendant had no criminal intention, you will acquit him.” We think it was the right of defendant to have the jury instructed substantially as asked; that is, told affirmatively, that if his intention was not criminal (or fraudulent) he was not guilty of theft. (Smith v. The State, 24 Tex., 549; Isaacs v. The State, 30 Tex., 450.)
The abstract statement of the law, in the definition of theft, was not calculated to call the attention of the jury to the real issue under the evidence in a manner so pointed and direct as to satisfy us that the defendant was not prejudiced by the refusal of the instruction asked. In cases where the taking may have been done under an honest *529mistake, it is proper to give the defendant, if he asks it, the .benefit of a special instruction, which will make it plain to the jury that they must be satisfied that the taking was not under such mistake before they can find a verdict of guilty. 1
The judgment is reversed and the cause remanded.
Reversed and remanded.