Appellant was tried and convicted in the lower court on an indictment charging him in the ordinary form with the theft of a horse, the property of one E. H. Blackwell. At the last Austin term his appeal from the judgment of conviction was affirmed by this court in an oral opinion. A motion for rehearing was submitted by appellant’s counsel, accompanied by a most able argument upon the law and the facts.
The two prominent points relied upon for a rehearing and reversal of the judgment are:
1. That the lower court erred in overruling in the first instance his application for a continuance, and again in not granting him a *37new trial, when his application for continuance was considered in connection with the other evidence in the case.
2. That the evidence upon which the conviction rests, as shown by the record, is insufficient to sustain the judgment; that the verdict and judgment are contrary to the evidence and the law of the case, and therefore the lower court erred in overruling his motion for a new trial based upon these grounds.
As stated above, the indictment was an ordinary indictment for, and simply alleging, the theft of the horse. The evidence in behalf of the State showed a hire of the horse by defendant from the owner, and a subsequent sale of the horse by the defendant without the knowledge and consent of the owner; and the theory upon which the conviction rests is that the possession of the horse was originally acquired bjr defendant with false pretenses, and with a fraudulent intent to steal at the time he hired him. “It is well settled in this State that, under an ordinary indictment for theft, a conviction may be had on proof which shows that the taking, though with the owner’s consent, was obtained by false pretext or with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker.” (Dow v. The State, 12 Texas Ct. App., 343, and authorities there cited. See, also, The State v. Coombs, 65 Me., 477; Watson v. The State, 70 Ala., 13.)
But it is also equally as well settled that, in order to sustain a prosecution for theft where the taking was originally lawful, the proof must show that the taking was obtained by means of some false pretext or with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker. (Hornbeck v. The State, 10 Texas Ct. App., 408; Dow v. The State, supra.) Our statute is that, to constitute theft, the taking must be wrongful, so that, if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft; but if the taking, though originally lawful, was obtained by any false pretext or with any intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” (Penal Code, art. 727.) But the felonious intent is the very gist of the offense, and is essential to the crime of theft in all its phases, and this intent must exist at the very time of the taking; no subsequent felonious intent will render the previous taking felonious. (Billiard, v. The State, 30 Texas, 368; Quitzow v. The State, 1 Texas Ct. App., 65; Johnson v. The State, Id., 118; Dow v. The State, 12 Texas Ct. App., 343.)
*38“ It may at one time have been considered the law of larceny, that, although a hiring and taking in the first place might have been bona fide, yet, if the time for which the hiring was made had expired, and the property is afterward converted, it is larceny. But such has not for a long time been the law, which is now stated correctly as follows: Where the horse was delivered on hire or loan, and such delivery was obtained bona fide, no subsequent wrongful conversion pending the contract would amount to a felony. (2 Buss, on Crimes, 9th ed., 237.) Where the possession was obtained bona fide, the mere fact of the subsequent existence of the animus furandi does not make the offense larceny. (2 Whart. Cr. Law, § 1860.) If one hires a horse and sells it before a journey is performed, or sells it after before it is returned, he commits no larceny in a case where the felonious intent came upon him subsequently to his receiving it into his possession.” (2 Bish. Cr. L., § 864; Hill v. The State, Supreme Court of Wisconsin (1883), 4 Crim. L. Magazine, 340.)
In Rex v. Banks, Russell & Ryan C. C., 441, it was held that “if A. bona fide hire a horse for a particular purpose, and after that purpose is accomplished sell the horse, it is no larceny; for, unless he had an original felonious intention, the subsequent withholding or disposing of the horse does not constitute a nevo felonious taking.” This subject is most ably and elaborately discussed in many of the leading authorities cited in the editor’s note to Commonwealth, v. James (1 Pick., 375), which case is reported in full in 2 Leading Cases (Bennett & Head), 2d ed., p. 181 et seq. It must be carefully observed, however, that the rule we have been considering applies only where, in the first instance, the goods were obtained rightfully, as well as without the anima furandi. Everything depends upon the intent, or existence or non-existence of the animus furandi at the time of the original taking. Where one has come into possession of personal property by consent of the owner, to warrant his conviction for the theft of the same, this fraudulent intent or animus furandi at the time of its acquisition should be established clearly and beyond a reasonable doubt.
Let us now apply these established rules of law to the facts in this case. Briefly stated, the facts material to the issue are, that about 8 or 9 o’clock on a Sunday morning in June, 1883, defendant hired of Blackwell, in Cleburne, at his livery stable, a horse for two days, saying he wanted to ride the horse to G-lenrose in Somervell county, to see one Dud Hudson at Glenrose. On Monday, the 18th of June, 1883, the day after defendant hired the horse, he sold *39him in the city of Fort Worth, twenty-eight miles from Cleburne, in the afternoon of said day, to one Souther. Blackwell recovered the horse from Souther at Fort Worth. Defendant proved by his wife that, at about 8 o’clock of the Sunday morning on which defendant hired the horse, he left home on the horse in the direction of Glenrose, Somervell county, where he had previously told her he was going to see Dud Hudson, and where she understood Hudson lived, to find out where one W. T. Hudson was. That, about 10 o’clock at night of the same day, he returned home to Cleburne and told her he had been to Glenrose to see Hudson. On the next or Monday morning, he again left home, saying he was going to Fort Worth to see W. T. Hudson, and that he would come back home that night. He carried no clothing with him except what he wore. Another witness substantially corroborated the testimony of the wife. In January following, defendant returned to Cleburne and surrendered himself to the officers of the law.
The charge of the court was a full, fair and careful exposition of the law of the case.
We have reproduced the facts with a view of determining whether the action of the court in overruling defendant’s motion for a new trial was correct, in consideration of the facts taken in connection with the facts proposed to be proved by the absent witnesses for whom the continuance which had been overruled was sought.
How we have seen that the issue was as to what wras his intent at the time of the hiring of the horse by him. If his intent was really and only to go to Glenrose to see Dud Hudson, to find out from him where W. T. Hudson was, then his subsequent sale of the horse at Fort Worth, however wrongful, was not theft. If the testimony of his witnesses is to be believed, then he did go to Glen-rose to see Dud Hudson, and returned to Cleburne, and afterwards went to Fort Worth to see W. T. Hudson, the man he wanted to find. If we give him the presumption of innocence, which the law accords to every accused party, we should presume, if this evidence be true, and if in fact he did go to Glenrose, that the intent with which he hired the horse to go to Glenrose was the innocent one stated by him, and that the animus fttrancli never took possession of him until after his return from Glenrose. It becomes a very important matter, then, to find out whether or not it be true that he did in fact go to Glenrose. This fact his wife and the other witness did not know, for they were not at Glenrose.
How the object sought to be proven by the absent witness, A. J. or Dud Hudson, was that defendant went to Glenrose, saw the *40witness, inquired of him for the whereabouts of W. T. Hudson, the party he was seeking. That Dud Hudson did not know where W. T. Hudson was, and that said witness saw defendant, immediately thereafter, go back in the direction of Cleburne. In an explanation of the ruling, the court says his action ivas based, both as to the application for continuance and the motion for a new trial, upon the fact that the evidence was not thought to be material. We think otherwise. In our opinion, the evidence was material,, and should have been before the jury to have been weighed and considered by them in determining the vital issue in the case, viz.: whether the defendant obtained the possession of the horse with fraudulent intent and by means of a false pretext.
Because the court erred in overruling defendant’s motion for a new trial, the judgment should be reversed. Wherefore the appellant’s motion for rehearing is granted; the judgment of affirmance heretofore rendered is set aside, and the judgment of the court below is reversed and the cause remanded for a new trial.
Reversed and remanded.
[Opinion delivered October 15, 1884.]