To constitute theft the taking of the property must be fraudulent, with the intent on the part of the taker to deprive the owner of the value thereof, and to appropriate the same to the use or benefit of the taker. (Penal Code, Art. 724; Camplin v. The State, 1 Texas Ct. App., 108; Dunham v. The State, 3 Texas Ct. App., 465.) It devolves upon the prosecution to prove, beyond a reasonable doubt, that the property was taken with the intent above stated, and that such intent existed at the time of the taking. (Reed v. The State, 8 Texas Ct. App., 40.)
In this case, we regard the evidence as wholly insufficient to establish a fraudulent intent on the part of the defendant in taking the horse. On the contrary, we think the evidence shows, at most, a mere trespass; a taking of the horse for temporary use only, with no intention to deprive the owner of the value thereof, or to appropriate the same absolutely to his own use or benefit. In our opinion the conviction is without sufficient evidence to support it. and the judgment is reversed and cause remanded.
Reversed and remanded.
Opinion delivered October 13, 1883.