A motion to dismiss this appeal is made by the attorney general. The ground of the motion is that the defendant has taken his appeal from an interlocutory order overruling his motion for a new trial, and not from the final judgment. Defendant’s notice of appeal was given upon the overruling of his motion for a new trial. The judgment had been previously entered against him, and when his motion for a new trial was overruled the judgment was then a final one so far as that court could make it final, and then was the proper time for the defendant to give notice of appeal to this court. The motion to dismiss the appeal is therefore overruled. The case having been submitted finally, as well as upon the motion to dismiss, we will proceed to consider and determine the questions presented by the record, in so far as we may deem it necessary to so do.
*486The defendant was indicted for theft of one head of cattle, alleged to be the property of G. C. Gordon. The verdict of the jury as we find it in the record is as follows: “We the jury find the defendant guity of concealing stolen property, and assess his punishment in the State prison for 2 years.”
The evidence as to the ownership of the animal alleged to have been stolen is, substantially, that it belonged to one Wilkerson, who resided at McKinney in Collin county, Texas; that Wilkerson had some cattle running near G. C. Gordon’s, and moved them away from there, leaving still in that range this particular animal; that Wilkerson left this animal in charge of said Gordon,—that is, says the witness Gordon, “He sent me word to look after it for him. I was looking after it for him. I had the yearling and its mother in my pasture awhile, but when it was taken it was running on the range.” This was all the evidence showing ownership of the animal to be in G. 0. Gordon, as alleged in the indictment. Defendant’s counsel insists that there is no sufficient proof of ownership as alleged.
Article 426, Code Crim. Proc., provides that, “Where one person owns the property, and another person has the possession, charge or control of the same, the ownership thereof may be alleged to be in either.” Article 728 of the Penal Code provides: “It is not necessary, in order to constitute theft, that the possession and ownership of the property be in the same person at the time of taking;” and art. 729 reads: “Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care or management of the property, whether the same be lawful or not.” Proof of either a general or special property in the alleged owner will be sufficient. (Dignowitty v. State, 17 Texas, 521.)
We think the proof of ownership in this case met the requirements of the law. It showed that G. C. Gordon *487had the animal in charge, and was actually taking care of it, by watching after it in its accustomed range. The case of Blackburn v. State, 44 Texas, 475, cited by counsel for defendant upon this point, differs materially from the case at bar. In that case the ownership of the animal was alleged to be in one Esparza, and the proof showed that it was an estray, and that at. the time it was taken he had neither a general nor a special property in the animal.
But we think there is an insufficiency of evidence in this case to show a want of consent on the part of Wilkinson, the owner of the animal, to the alleged taking. The want of the owner’s consent must be proved like any other element of the offense. It cannot be presumed or inferred. It may be proved by circumstantial evidence, but still it 'must be proved. (Garcia v. State, 26 Texas, 209; Wilson v. State, 45 Texas, 76; McMahon v. State, 1 Texas Ct. App. 102; Welsh v. State, 3 Texas Ct. App. 422; Foster v. State, 4 Texas Ct. App. 246; Trafton v. State, 5 Texas Ct. App. 480.) Where one person owns the property, and another person has the management, control or care of it, the want of the consent of each of these persons must be proved; and this proof should be made by the persons themselves if they are attainable, and if they are not to be had, their absence should be accounted for before the State can be allowed to resort to circumstantial evidence. (Erskine v. State, 1 Texas Ct. App. 405; Jackson v. State, 7 Texas Ct. App. 363.) In the case before us there is no evidence proving or tending to prove a want of consent to the taking of the alleged stolen animal, on the part of Wilkinson, the owner. The only circumstance pointing in that direction is the one that he resided in a distant county at the time of the taking. His absence from the trial was not accounted for; while the evidence showed that he resided within the jurisdiction of the court, and could have been reached by its process.
*488Before the defendant can be properly convicted of concealing stolen property, it must be made to appear satisfactorily, and beyond a reasonable doubt, 1. That the property was acquired by theft. 2. That, knowing it to have been so acquired, he concealed the same. The evidence in this case tending to prove a guilty knowledge on the part of the defendant is, to say the best of it, meagre, and to our minds insufficient to support the verdict.
Under the authority of Taylor v. State, 5 Texas Ct. App. 569, the verdict is insufficient. It does not find the defendant guilty of any offense.
We think the court erred in overruling the defendant’s motion for a new trial.
Reversed and remanded.