Two counts were contained in the indictment,—one for wilfully driving the animal from its accustomed range with intent to defraud, and one for the theft of the animal. Appellant was found guilty under the first count of wilfully driving the animal from its accustorped range with intent to defraud the owner, and his punishment is fixed by the verdict and judgment at two years in the penitentiary.
The statutes regulating this offense are as follows in the Penal Code:
“Art. 749. If any person shall wilfully take into possession and drive, use or remove from its accustomed range any live stock not his own, without the consent of the owner, and with intent to defraud the owner thereof, he shall be deemed guilty of theft, and on conviction shall be confined in the penitentiary not less than two nor more than five years; or be fined in a sum not to exceed $1,000, or by both such imprisonment and fine, at the discretion of the jury trying the case.
“ Art. 750. Nothing in the preceding article contained shall be *249construed to prevent any person from, driving his own and other stock that may be mixed therewith to the nearest convenient point within the usual range of such stock, for separation.
“Art. 751. In any prosecution under article 749, it shall only be necessary for the State to prove the act of driving, using or removing from its accustomed range any live stock not belonging to or under the control of the accused, and it shall devolve upon the accused to show any fact under which he can justify or mitigate the offense.”
Where an offense is made to depend upon the fact that it is “ wilfully ” done, it is necessary that the court should define the meaning of the word wilfully in its charge to the jury. (Trice v. The State, 17 Texas Ct. App., 43.) It is insisted that the court’s definition in this instance was not correct. The definition given was, “ by wilfully as used in this charge is meant that the act was done without reasonable ground to believe the act of taking was lawful.” This definition is in exact accordance with one of the approved definitions of that word announced by this court in Thomas v. The State, 14 Texas Ct. App., 200; Lane v. The State, 16 Texas Ct. App., 173; Wood v. The State, 16 Texas Ct. App., 574; Shubert v. The State, 16 Texas Ct. App., 645; and Trice v. The State, 17 Texas Ct. App., 43.
Taken as a whole, the charge fairly and fully presented the law of the case. It was not excepted to. [There is a bill of exceptions to a charge given in another case, which has evidently been copied into this record by mistake; the style of the case, number and date of filing all show it does not belong to this case.] If the charge was deemed insufficient in not presenting the law as fully as it should, defendant should have presented special instructions covering the supposed defects and omissions. As it is, we see in it no radical or fundamental error.
We are of opinion that the evidence is sufficient. The horse was seen In appellant’s herd, which herd appellant was in person controlling for several days at Batliff’s and Shaffer’s. This was from eight to twelve miles from his accustomed range. The witness Darby says he saw the horse in Batliff’s pen — saw the defendant there — the defendant opened the gate and let out the horses and drove them away; the pony went with the herd,—defendant made no effort to leave him. Darby afterwards told Mantooth about this, and when Mantooth met defendant afterwards and asked him if he had seen the horse, defendant said he had noticed the brand somewhere but did not recollect where. He did not offer to help hunt *250the horse. Allen; another witness, says he saw the pony at Eatliff’s pen, and defendant was at and about the herd at the time the pony was saddled1 and ridden by one Moore, who was also connected with the herdl
There are no other material questions presented in the case. The judgment is affirmed.
Affirmed.
[Opinion delivered October 31, 1885.]