The appellant was convicted of theft of a steer. The charge of the court is a full, fair and pointed application of the law to every phase of the case as made *67by the facts. The trial, judging from the record, was in every particular legal, and eminently fair to the appellant.
There remains but one question: Does the evidence support the verdict? We think not. The fraudulent intent is wanting. Criminal jurisprudence differs more from civil concerning intent than upon any other point. If one does an act injurious to another, though not influenced by an evil mind nor intending the same, he shall be held the loser, rather than the other, under many circumstances in which no blame can be attached. Hot so in criminal law, for crime proceeds only from a criminal mind; and especially is this the case with regard to theft. ‘‘There is but one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. Criminal law relates only to crime, and neither in philosophical speculation nor in religious or moral sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist.” 1 Bish. Crim. Law, 370.
To constitute theft there must not only be a talcing of the property of another without his consent, but the mind must intend a fraudulent taking with intent to defraud the owner of the value of the property.
The statement of facts will be reported, and from the facts it will be seen that (giving the evidence all of its strength and viewing it in the most unfavorable light to the appellant) there is no proof even tending to show a fraudulent intent; but, on the other hand, every fact, save the taking of another’s property without his consent, refutes it completely. We therefore conclude that the court below erred in overruling the motion for a new trial; for which error the judgment is reversed and the cause remanded.
Reversed and remanded.