ON APPELLANT’S MOTION FOR REHEARING.
DAVIDSON, Judge.The defense of a mistake of fact — that is, that appellant believed the hogs taken belonged to him — was raised by appellant’s testimony. The trial court so recognized, and gave the following instruction relative thereto, viz.:
“You are charged that if you believe the defendant, Mose Green, took the two head of hogs belonging to W. W. Minter, if you find that he so acted under a mistaken belief that they were his hogs, in good faith, believing the two head of hogs were his own property, and such belief did not arise from want of proper care on his part, or if you have a reasonable doubt as to whether or not he acted under such mistaken, you will acquit the defendant and say by your verdict ‘not guilty.’ ”
The charge was predicated upon the provisions of Art. 41, P. C., which reads as follows:
“If a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal he is guilty of no offense, but the mistake of fact which will excuse must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct, and it must be such mistake as does not arise from a want of proper care on the part of the person so acting.”
It is appellant’s contention that the provision of said article requiring that the mistake of fact “not arise from a want of proper care” does not apply in cases' of theft where the mistake of fact relied upon as a. defense is that of belief of owner*446ship, as here presented. In keeping with that contention, appellant excepted to the charge above set out as placing a greater burden upon him than required by law.
It was appellant’s further contention that he was entitled to have the jury instructed to the effect that if he in good faith believed the hogs belonged to him at the time they were killed he would not be guilty. As supporting these contentions, reliance is had upon the cases of Bray v. State, 41 Tex. 203, Neely v. State, 8 Tex. App. 64, and Fields v. State, 124 S. W. 652.
The decision in Bray’s case was by the supreme court of this state at a time when that court had appellate jurisdiction in criminal cases. In that case, Bray was convicted of stealing the cow of Hamner. His defense was that he believed the cow belonged to his father and was taken with that belief. In accordance with that defense, Bray asked that the jury be instructed to acquit if the cow was taken under an honest belief that she belonged to his father. This charge the trial court refused. Instead, the trial court instructed the jury in accordance with statutes then in effect — in all material aspects the same as our present Arts. 41 and 42, P. C. — that the defense of mistake on Bray’s part was not availing if he “did not act with proper care in ascertaining the true ownership of the cow.” In holding that Bray was entitled to the instruction requested, the court said:
“These articles refer to acts ‘otherwise criminal,’ or acts in themselves criminal if unexcused, and not to acts which become criminal only when committed with a fraudulent or felonious intent. For example, to sell liquor without a license is an offense, though the clerk who sells it may carelessly take it for granted that his employer had a license. (Tardiff v. The State, 23 Tex. 169.) So the criminality of a homicide, committed under the mistaken belief of the existence of facts which excuse the act, may be affected by the want of proper care inducing the mistake. (1 Bish. Crim. Law, 384.) In theft, the fraudulent intent is a necessary constituent of the offense. The act of taking itself, without such an intent, is a mere trespass. If the taking be under an honest, though mistaken, claim of right, it would seem hardly necessary to cite authority that it is not theft. (4 Bl. Comm., 232; 1 Hale P. C., 509; Smedley v. State, 30 Tex., 214; Dignowitty v. State, 17 Tex., 527.) ”
The holding in the Bray case was followed and cited with approval in the Neely case, supra. In that case, Neely was 'convicted of cattle theft, upon facts showing that he bought' from *447Mitchell a beef which belonged to Dean. His defense was that of mistakenly believing that he was taking the property he had bought from Mitchell. The trial court limited the defense to the exercise of proper care by Neely to ascertain the true ownership of the cow. Such charge was held erroneous, under the authority of the Bray case, supra.
In the Fields case, supra, we have a case very similar in point of fact to the instant case. In that case, in submitting the defense of mistake, the trial court instructed the jury as follows:
“If you believe defendant took or participated as a principal in the taking of Henry Davis’ hog, but believe he so acted under a mistaken claim of right, in good faith believing the hog to be his own property, or if you have a reasonable doubt as to whether or not he acted under such mistake, you Will acquit the defendant.”
Such charge was approved as against the contention that it did not clearly and explicitly submit the defense of mistake of fact. It is a charge to the same effect that appellant insists he was here entitled, unencumbered by any limitation as to the exercise of proper care before relying upon the belief upon which the mistake of facts is predicated.
In Forrester v. State, 69 Tex. Cr. R. 62, 152 S. W. 1041, the conviction was for receiving stolen property knowing it to have been so acquired. A dress was stolen from a store in Waco. At the instance of the thief, the dress, after having been placed in a box, was by express shipped to Taylor at Fort Worth. Taylor, who was in Dallas, was called over the telephone to go to Fort Worth and get the box. Forrester went to Fort Worth and, after signing the name of Taylor, received the box from the express office. He did not open the box or know its contents at the time he received it. Under this state of facts, the jury was instructed to the effect that if Forrester “ ‘did not know that the said dresses were stolen or did not receive said goods under, circumstances sufficient to satisfy a man of ordinary intelligence and caution that same, dresses were stolen, you will acquit him.' ”
In holding said charge erroneous, we said:
.■ “Appellant’s criminality in.this.case would .not depend upon, whether he exercised ordinary diligence, and caution to ascertain whether the dresses were stolen or not. The statute requires-. *448that he must know the goods to have been stolen when he received them. Knowledge on his part is essential, and not only so, but the fraudulent intent must exist as well at the time he received the goods. The mere reception of stolen property is not criminal. As before stated, there must be knowledge on his part that the goods were stolen; and he must receive them with the fraudulent intent to convert them to his own use and deprive the owner of the goods or their value.”
The Bray and Neely cases were cited, among others, as supporting the conclusion expressed.
The holding in the Bray case, supra, appears to have been sanctioned in Barton v. State, a robbery case, 227 S. W. 317, where it was said:
“The animo furandi is an element of robbery as it is of theft, and both in theft and robbery the taking of goods upon a bona fide claim of right may negative any intent to steal.”
See, also, Minica v. State, 99 S. W. 2d 934.
In 32 Am. Jur., Larceny, Sec. 41, p. 936, it is said:
“An intent to steal property and a bona fide claim of right to take it are incompatible. One who takes property in good faith, under fair color of claim or title, honestly believing that he is its owner and has a right to its possession or that he has a right to take it, is not guilty of larceny even though he is mistaken in such belief, since in such case the felonious intent is lacking.”
Attesting authorities from other jurisdictions are there cited.
The hogs which appellant and his nephew were charged with having stolen, by shooting them, were at the time running at large upon the open range. According to appellant’s contention, he had hogs running in the same vicinity or range, in connection with which fact we note that he testified as follows:
“I did not have any intention or purpose to steal or appropriate anyone else’s hogs to my own use and benefit at this particular time. When these hogs were shot I sure did think they were my hogs. I would not have instructed Homer to shoot them, and if I did not have a claim for hogs there I would not have been hunting them.”
*449We think that appellant has brought himself within the rule of law above stated and that he was entitled to have the jury-instructed in accordance therewith, to the effect that if he acted under a mistaken claim of right, in good faith believing that the hogs belonged to him, he would not be guilty — and this, without reference to whether that belief “did not arise from want of proper care” on his part.
In order that no confusion may arise, it should be again pointed out that the rule of law here announced and the interpretation placed upon Art. 41, P. C. apply only to those crimes where the unlawful intent is an essential element without which the offense does not arise.
Believing that the charge, as given, placed upon the appellant a greater burden than that authorized by law, appellant’s motion for rehearing is granted, the judgment of affirmance set aside, and the judgment is now reversed and the cause is remanded.
Opinion approved by the Court.