About the last of March, 1875, the appellant hired a gelding from the livery-stable of one W. B. Newton, in Seguin, to go to the town of Leesburg, some eighteen miles distant, to tune a piano. He was to return that evening, or early the next morning. He did not go to Leesburg, but went to Helena, in Karnes county, a distance of fifty miles, and in a different direction to Leesburg.
He was arrested on the 15th day of April, three miles ■southwest of San Antonio, in Bexar county, where he was found in possession of the horse, and in the camp of a party of cattle drovers, to whom he had hired to drive cattle to •Colorado.
*68When the deputy sheriff who arrested him arrived at the camp, and inquired for defendant, he was only a few steps-off, lying under a wagon, with a book up before his face, partly concealing his face. The sheriff asked the man who seemed to be the spokesman of the party if Quitzow was in camp, when he answered no, he had left camp that morning. The sheriff then asked where the horses belonging to the party were, and, being informed they were “ on herd, a short distance off,” he sent Newton, a brother of the owner of the horse, out to the herd, whilst he remained in camp. Newton returned in a short time with the horse,, having found him in the herd. The sheriff then called to the defendant, who was still under the wagon, to come out, as he believed he was the man he wanted; and, when the defendant got up and came out, he asked him “ Is not your name Quitzow?” He answered “ Yes.” The sheriff then said to him “ Why did you not own up to your name when I first called for you? ” Defendant replied “ I thought if I said nothing I could get out of it, and you would not catch me; but I see I had as well have owned up at first, as-you have caught me;” The defendant was then arrested, was indicted, and tried in the district court of Bexar county, found guilty of the theft of the animal, and' his punishment assessed at five years in the penitentiary.
There was a motion for a new trial, which being overruled,, defendant appealed, and assigns for error :
1st. That the court erred in refusing to charge the jury as requested by the defendant, and in the law actually given > to the jury.
2d. The court erred in refusing to charge all the law applicable to the case.
3d. The court erred in overruling defendant’s motion fora new trial.
Theft is defined to be “ the fraudulent taking of corporeal-personal property belonging to another, from his posses*69■sion, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” Pase. Dig., Art. 2381.
This is the general definition of theft, and a proper construction relative to the intent, which is made a constituent element of the crime, is that.“the felonious intent is an essential ingredient in the crime of theft, and this intent ° ’ must exist at the time of taking; for no subsequent felonious intention will render the previous taking felonious.” Billard v. The State, 30 Texas, 367 ; Dignowitty v. The State, 17 Texas, 527; 3 Greenl. on Ev., sec. 150.
This idea is also plainly expressed in another section of the statute, as follows : “The taking must be wrongful; so that, if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft.” Art. 2385. The statute, however, does not stop here; but, in order to meet a class of cases too common, where the owner of the property, or the party holding the same for him, was induced to, and did, part with his property to a party who at the time intended to get his consent to a transfer of the possession, with the ultimate intention of appropriating it to his own use, it goes further, and expressly provides : ‘6 But if the taking, though originally lawful, was obtained by any false pretext, or with an intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense is complete.” Pase. Dig., Art. 2385. There is no repugnance or inconsistency bew'een the two Articles quoted.
The taking, as defined in this latter Article (2385), does not describe a different offense from that defined by Article 12381, but only differs in its facts and circumstances, which *70are matters of proof, and need not be averred in the indictment. Maddox v. The State, 41 Texas, 205 ; White v. The State, 11 Texas, 769 ; Smith v. The State, 35 Texas, 738.
The plain construction to be placed upon the statute is that the consent of the owner, obtained under any false pretext, would not be a defense on the charge of theft if it were made to appear that the intention really was to divest him of his property. Maddox v. The State, 41 Texas, 205. And this, it seems, is no new innovation upon the rules of evidence applicable to cases of theft. 3 Greenl. on Ev., sec. 160.
Mr. Bishop, in his valuable work, drawing the distinction, and giving the reason for the rule which prevails in the-law for this class of cases, says: “ If a man, meaning to> steal his neighbor’s goods, fraudulently prevails on his neighbor to deliver them to him, under the understanding that, the property therein is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent,, he fraudulently gets leave to take the possession only, and takes and converts the property in the goods, he becomes-guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.” 1 Bishop on Cr. Law, sec. 1017.
Again, the same author says : 61 But a consent, to avail the defendant,, must be to the taking of the property in the goods—not merely to a transfer of the possession, or a parting with the use of them. The reason is that larceny is committed only when the aim of the thief is to divest the owner of his ownership, in distinction from the mere use or temporary possession ; so that a consent which comes short of this necessary intent covers not the whole ground of the taking, and avails nothing. For example, if with -felonious-*71mind one borrows or hires a horse or carriage, as he pretends, to ride, etc., his concurrent intent being, let us still remember, to steal the thing, he commits, notwithstanding this consent of the owner, the crime of larceny.” 2 Bishop on Cr. Law, sec. 818; State v. Gorman, 2 Nott & M. (S. C.) 90.
After defining theft and its punishment, the court charged the jury that, “ in order to convict the defendant, you must be satisfied from the evidence that his original intention was to obtain possession of the gelding, by the false pretext of hiring, and then to appropriate the animal to his own use;” and, further, “ if you have a reasonable doubt of the guilt of the defendant, you will give him the benefit of the doubt, and acquit him.”
We think this instruction presented the essential points in the case concisely and fairly to the jury; and, whilst the charge, as a whole, might perhaps have been fuller, we are not prepared to say that it did not present all the law applicable to the case.
As to defendant’s intention of permanent conversion and appropriation of the property, the evidence adduced fully warranted the jury in arriving, as they did, at an affirmative conclusion. In addition to the facts above stated, Charles Johnson testified that the defendant had placed the horse in his lot in order that he (witness) might doctor him for a sore back; that the horse stayed in the lot several days. “That he never heard the defendant speak of his having been at Seguin, or that the horse was not his own, or belonged to a man at Seguin. He always spoke of the horse as his own.” And Schrceder, another witness, says: “I understood from them (defendant and another party) that they were going to Colorado or California with some cattle men. Defendant never told me he was from Seguin, or that he had ever been there. He told me he came from Helena. He claimed the horse as his property.”
*72We see nothing in the record which calls for a reversal of the case; the judgment of the lower court is, therefore, affirmed.
Affirmed.