One theory of the defense in this case was that appellant was the hired hand of his brother. His brother, who was a witness, testified to that fact. After he had so testified, defendant further proposed to prove by-him that he had instructed his brother, the defendant,, to kill all unmarked grown hogs; and further, to prove by the witness that it was a general custom of the country that any one had a right to kill all unmarked hogs over twelve months old running on the range; and the court refused to admit such evidence, and defendant saved a bill of exceptions to the ruling and claims the ruling as error. Hot only so, but upon this point he claims that additional error was committed by the court in refusing a special requested instruction as follows: “That the statutes of this State require that all hogs, sheep and goats shall be marked with the ear-mark of the owner, on or before they are six months old, and if the jury find from the evidence that the hogs in controversy were over six months old, and were unmarked, and that defendant killed them not knowing them to be the property of Hutchins, then the defendant would not be guilty of theft, and the jury should acquit.”
In order to constitute theft it is not essential that the thief should know who is the owner of the property he has stolen, and such a doctrine was not intended to be announced as a general rule under the facts upon which the case of Boyd v. The State, 18 Texas Ct. App., 339, was decided. On the contrary, theft, or “a fraudulent *541taking of the property of another, embraces the idea that the taker knew that it was not his own, and also that it was done to deprive the true owner of it ” (Smith v. The State, 42 Texas, 444), whether he knew who the true owner was, or not.
No error was committed in refusing to admit proof that it was a general custom of the country that any one had the right to kill all unmarked hogs over twelve months old, running on the range. It .is true that the law requires that the owner shall place his ear-mark upon hogs, sheep and goats, on or before they are six months old (Rev. Stats., art. 4558), but a failure to do so does not affect, much less destroy, the owner’s right to his property. His recorded mark is not even required as the best evidence of ownership, as is the case with brands. (Rev. Stats., art. 4561; Dixon v. The State, 19 Texas, 134; Johnson v. The State, 1 Texas Ct. App., 333; Love v. The State, 15 Texas Ct. App., 563; Dreyer v. The State, 11 Texas Ct. App., 632.) To fraudulently take such property when unmarked is as much theft as if it had been marked. This is the rule of the law, and ignorance of the law is no excuse. (Penal Code, art. 14.) “ A rule of law can never be subverted by local custom. To sanction the doctrine that it could would be to unsettle the law, would open for discussion and neighborhood proof not the facts but the law, and allow such neighborhood the right to claim a distinqt law of its own, thereby destroying the beauty of the law which consists in the uniformity of its action throughout the land.” (Lockhart v. Dewees, 1 Texas, 535; McKinney v. Fort, 10 Texas, 220; White & Willson’s Ct. App. Civil Cases, §§ 272, 353, 696.)
It would seem that the case of Dibbs v. The State, 43 Texas, 650, announces a different doctrine, and in so far as it does it is hereby overruled. It is folly to talk about an individual gifted with enough intelligence to render him responsible for his acts honestly believing that he has the right to claim and appropriate all the unmarked yearlings, sheep, hogs and goats in Texas that are a year old. Such a custom would be a monstrosity which the law would never tolerate. It was not error to refuse defendant’s special requested instruction as above quoted.
One of the instructions given by the court to the jury was as follows: “The jury are further instructed that if they believe from the evidence that the defendant took the hogs charged in the indictment, yet that he so took them with an honest belief, although he may have been mistaken in such belief, that he had the right or the authority to so do, or if the evidence on this point is such as to raise in your minds a reasonable doubt as to whether the defendant did *542believe he had the right to take such hogs, then in such case you will give him the benefit of such doubt and acquit him.”
[Opinion delivered March 10, 1886.]This instruction fully and sufficiently covered the important material issues in the case with reference to wlpch the appellant is here complaining. If he wished more specific instructions upon these points he should have asked them, and presented them in such shape as that the court could give them. Whilst a court may qualify or modify an instruction which is asked, so as to make it present the law as the court conceives the law to be, yet the court is not bound to qualify or modify an illegal or erroneous instruction, but may refuse it outright.
We are of opinion that the-verdict of the jury is sufficiently definite and specific under our present statute. (Penal Code, art. 748.) There is some conflict in the evidence, but if the testimony of the State’s witnesses is believed the proof is amply sufficient to support the verdict and judgment, and the judgment is affirmed.
Affirmed.