1. This appeal is from a conviction for theft of a horse, alleged in the indictment to have been the property of Louisa Turnbo. On the trial, it was proved by the State that Louisa Turnbo, the alleged owner, was an aged lady, in very feeble health, and not able to appear in court and testify in the case. It was further shown that W. C. Turnbo, her son, at the time of the alleged theft, was managing and controlling her business affairs, and attended to all sales and other dispositions of her stock, and that she did not dispose of any of her stock except through the agency of her said son, and that her said son had not consented to the taking of the alleged stolen horse by the defendant, or any one else.
Upon this element of the case, the want of consent of the owner, the charge of the court is full and explicit, and, in our opinion, correct. It instructed the jury that it devolved upon the State to prove satisfactorily, and beyond a reasonable doubt, that the horse was taken by the defendant without the consent of the owner, Louisa Turnbo, and without the consent of her son, W. C. Turnbo, but that such proof might be made by circumstantial evidence. It is contended by counsel for defendant that the want of consent on the part of Louisa Turnbo, the owner, *354could not be established by circumstantial evidence. As a general rule, this proposition is correct. Circumstantial evidence should not be relied on by the State to prove the guilt of a defendant where direct testimony is attainable. But when it is shown, as in this case it was, that the direct testimony cannot be produced, and that the failure to produce it is not attributable to any want of diligence, or to any fault on the part of the prosecution, then it is perfectly competent and proper to resort to circumstantial evidence. (Wilson v. The State, 45 Texas, 76; McMahon v. The State, 1 Texas Ct. App., 102; Welsh v. The State, 3 Texas Ct. App., 422; Foster v. The State, 4 Texas Ct. App., 246; Trafton v. The State, 5 Texas Ct. App., 480; Rains v. The State, 7 Texas Ct. App., 588; Jackson v. The State, 7 Texas Ct. App., 363.)
It is further insisted by defendant’s counsel that the evidence of the want of consent of the owner of the horse to the taking of the same is wholly insufficient to sustain the verdict, even if such evidence was competent. We think differently. We think the jury were fully warranted in concluding, from the testimony, that Louisa Turnbo never gave her consent to the taking of the horse.
2. The principal defense relied upon by defendant was that he had purchased the alleged stolen horse from one Radcliff, his brother-in-law, who had left the county, and whose residence was unknown. There was direct evidence proving this defense, and there was no positive evidence adduced by the State contradicting it. It was an issue fairly and directly raised by the testimony, and upon this issue the learned judge instructed the jury as follows: “In order to constitute the crime of theft, there must be a fraudulent taking, and if you believe, from the evidence, that defendant purchased said horse of one Radcliff in good faith, without any intent on his, defendant’s, part to deprive the owner of the value of the same, then, in such case, the taking under such circumstances would not be fraudulent; and 'if you find that such purchase, if any, of said horse by defendant was honestly made, and was not a device to cover a fraudulent transaction, then you will acquit.”
This charge was not excepted to at the trial, but special charges were asked by defendant and refused by the court which fully and correctly presented the law of this issue, and the charge given by the court is made a ground of defendant’s motion for *355new trial, as is also the refusal of the court to give the requested charges.
Opinion delivered February 2, 1884.We are of the opinion that the portion of the charge which we have quoted is erroneous, and that the error is of such a character as might have operated to the injury of the defendant’s rights. It was correct to instruct the jury that to constitute theft there must be a fraudulent talcing. But it was not correct or consistent to say that if the defendant purchased the horse in good faith and honestly, that such taking would not be fraudulent; for a purchase is not a taking within the meaning of the statute defining theft. If he purchased the horse in good faith, or in bad faith, after the same had been taken—that is, stolen by another person—the purchase was not a taking, and could not be connected with the theft unless it were shown to be a mere sham to cover the fraudulent taking, and that defendant was in fact a party to such fraudulent taking. As was said by this court in McAfee v. The State, 14 Texas Court of Appeals, 668, “ There must he a taking, and no subsequent connection with stolen property, be it in good or had faith, honest or fraudulent, will constitute theft.”
We think the court should have instructed the jury, upon this issue, that if the defendant purchased the horse from Radcliff after the same had been stolen by Radcliff, or by some other person than defendant, then they must acquit him. It was not a question of good faith or honesty in the purchase, but a question as to whether or not the defendant came into the possession, of the horse after the same had been stolen, and without himself being a party to the theft. He might have known at the time he purchased the horse, if he did purchase him, that Radcliff had stolen him, and yet his purchase would not make him guilty of theft. To make him guilty of theft he must have been a party to the fraudulent taking. This subject has been, fully discussed and the correct rule plainly enunciated in McAfee v. The State, supra, and also in Parchman v. The State, 2 Texas Court of Appeals, 228, and we deem it unnecessary to further elaborate it. (See also Prator v. The State, decided at present term, post, 363.)
Because of the error in the charge of the court, above noticed, the judgment is reversed and the cause is remanded.
Reversed and remanded.