This is a conviction for theft of horses. From the statement of facts we find that two mares, suiting the description of those alleged to belong to the prosecutor Clark, were running in the range with the stock of Mrs. Crain within about two miles of defendant’s house. That with full knowledge that they belonged to Clark, and fraudulently and without his consent, appellant sold said mares to one Evan Eoberts, executing a bill of sale thereto to Eoberts.
As in Hardeman’s case, so in this, there is no evidence tending remotely to prove that appellant was ever in possession of the property ; but on the contrary it appears that he was not at any time.
By the definition of theft, under our Code, there must be a taking of the property, and this must be a fraudulent taking, by some person. In the case in hand defendant did not take the mares at all, and if there was a taking by Eoberts evidently it was not fraudulent, for he bought and paid for the property. (Penal Code, arts. 724, 726; Hardeman v. The State, 12 Texas Ct. App., 207; McAfee v. The State, 14 Texas Ct. App., 668.)
The general doctrine applicable to larceny at common law, and to theft or larceny in most if not all of the States, is that there can be no larceny — theft — without trespass. Mr. Bishop says: “The Trespass — General Doctrine.— It is a rule, rather technical than *232resting on any clear reason, that there can be no larceny without a trespass. How, this rule, though it seems at the first impression to be vepy simple, is in its results one of the principal things to be considered under this title Larceny. There are so many varying circumstances in which some sort of legal relation subsists between the wrong-doer and the owner of the property,— so many in which persons misappropriate property to which, or to the owners of which, they do not stand as entire strangers,— raising nice points as to whether there has been a trespass or not, that, out of this doctrine of trespass, grows a vast amount of law, with almost countless legal decisions. And, as we travel over this line of legal doctrine and decision, we shall see that the courts in expounding the rule have established some technical limitations and distinctions not less nice and refined than the rule itself.”
[Opinion delivered February 3, 1886.]And continuing upon this subject under the sub-head “ When not larceny, some-other crime — Embezzlement—Cheat — False pretenses, etc.,— he says: “It was, as the reader knows, to make punishable acts of misappropriation where there was no trespass, that the statutes against embezzlement were passed; and as those statutes have been found from time to time defective, they have been amended, and their scope has been enlarged. So, to meet certain other cases of fraudulent obtaining and using property to which he who practices the fraud is not entitled, we have the common law doctrine of cheat, and the statutes against obtaining money or goods by false pretenses. And there are known to the law some other offenses, the gist of which, perhaps, is the wrong-doer’s getting into his possession, under special circumstances, and misusing for his own benefit or to another’s injury, property to which he is not entitled. If, therefore, there is no larceny where there is no trespass, it does not follow that there is no offense.” (Bish. Crim. Law, vol. 2, §§ 799, 800.)
How, while in this State there need be no asportation, still there must be a taking,— the property must have been in the possession of the thief. (Penal Code, art. 726.)
The judgment is reversed and the cause remanded.
Reversed and remanded. .