Appellant was convicted of the theft of a red heifer, the property of one J. P. Bateman. If, instead of a criminal prosecution for theft, the proceeding had been a civil action to determine the ownership of the animal, a verdict in favor of either party, prosecutor or defendant, in view of the statement of facts, could not have been set aside for want of evidence to support it, nor upon the ground that it was against the evidence,— so evenly balanced does the evidence appear from the record. There can scarcely be a question but that both parties owned a red, white-faced heifer, about the same age and almost precisely similar in appearance and flesh-marks, even to the red ring over one of its eyes.
Defendant’s witnesses testify that his heifer had been *343marked with a swallow-fork in one of its ears before he sold it to Jerold, and they swear moreover that the animal in question, claimed by the prosecutor and which Jerold after his purchase had marked and branded, was this identical animal. Bateman’s heifer had never been marked. In this unsatisfactory state of the evidence, the testimony of Jerold would be and is very important, even if this was a civil suit, in settling the question as to whether or not the animal had a swallow-fork in its ear when he purchased and placed his own mark upon it.
Again, it is also manifest from the evidence that at the time the red heifer was stolen two other calves of Bateman’s were also stolen, one of which was found by him, in a herd of cattle in possession of Harry Milby, in Eastland county, about the same time the red heifer was found in Jerold’s herd. How, how did Milby acquire possession of this other calf? If from defendant, it would have been a strong if not overwhelming circumstance against defendant, especially if, in connection therewith, the State had shown by Jerold that the heifer he purchased was not marked with a swallow-fork. Heither Jerold, Milby, nor any other witness was put upon the stand to testify as to these matters.
Without this evidence or other and stronger evidence of the fraudulent intent of defendant than is exhibited, we do not think the conviction should stand. ‘ ‘ A fraudulent taking of the property of another embraces the idea that the taker knew that it was not his own, and also that it was done to deprive the true owner of 'it. This is usually evidenced by its being done in such manner and under such circumstances as to avoid detection or responsibility to the true owner.” Smith v. State, 42 Texas, 444. There was no concealment or covert action by Ainsworth tending to show that his taking of the animal was with fraudulent intent. For aught that appears, there is nothing in the record so far as his conduct is disclosed *344which should have satisfied the jury that he did not believe the heifer was his property, as he claimed it to be and by his witnesses positively proved it to be.
In this connection the charge of the court to the jury was “that the open and public manner in which property is taken and claimed will not in any manner lessen or excuse the offense, if the same was taken with a guilty knowledge and fraudulent intent.” Abstractly considered the charge is a correct enunciation of the law. But it is obnoxious in that it is negative in its nature and effect, and was calculated to be misconceived by if it did not in fact mislead the jury. “The rule applicable to all defenses, whether complete or otherwise, is that the court below must apply the law clearly, pertinently and affirmatively to the facts tending to support the defense.” Johnson v. State, 43 Texas, 612; McLaughlin v. State, 10 Texas Ct. App. 340.
The charge is also hable to the objection that it did not sufficiently draw the distinction between trespass and theft,— a distinction demanded by the character of the evidence. “In theft the fraudulent intent is a necessary constituent of the offense. The act of taking without such 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. In cases where there is evidence from which the jury might infer that the taking was not fraudulent, it is the right of the defendant to have them clearly instructed as to the distinction between trespass and theft.” Bray v. State, 41 Texas, 203; Isaacs v. State, 30 Texas, 451; Neely v. State, 8 Texas Ct. App. 64; Landin v. State, 10 Texas Ct. App. 63.
Because the evidence is insufficient, and for the errors in the charge of the court as indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.