This is a conviction for theft from the person. The testimony of the prosecuting witness is in effect as follows: "I know defendant; saw him about the latter part of November, 1887, in McKinney, in Hedrick’s store. * * We sat about the store until about twelve o’clock. At this time a man by the name of Williams, George Banks, Anderson Bell and. George Washington were in Hedrick’s back room, talking. Defendant took a ten dollar bill from my vest pocket, which I had on at the time. I saw him take it. It was taken quickly, almost in a second; he just dipped his fingers in my pocket and pulled it out as quick as he could. The bill was a ten dollar bill, and taken without the consent, etc. * * After defendant took *338my money, we stood around talking, and then took a drink of whisky, and I demanded my money of defendant, who denied he had it, and said he had given it back to me. After talking awhile, some one proposed a search, and defendant at once left and went some sixty feet—out of my sight. Mr. Hedrick stepped to the door and called him back. He came back and was searched, but no money was found on him. * * * I was offering to bet Williams that my horse could out pull any horse in town. Williams wanted to bet on a horse. While this was going on between us, defendant stepped up, took the money from my vest pocket, said ‘you haven’t got any nerve to bet; I will bet him,’ and stood there at arm’s length, talking about the bet for ten minutes, when we all took drinks, and' I then asked defendant for my money. He denied having it; said ‘search me,’ and I did so, and failed to find it. * * * While defendant stood by me with my money, he had it in his hand, twirling it in his fingers, and I made no objection in any way and did not object to the bet he was offering to make with Williams. I said nothing about it one way or the other. I could reaóh him without moving at any time during the ten minutes. I never tried to stop him or to retake my money. * * I was sober but I think Graves was drunk and all the others nearly so.” The above testimony presents the case more strongly against appellant than the evidence of the other witnesses.
In theft, general or from the person, the taking must be without the consent of the owner; or, though lawful (with consent), the possession of the property must be obtained by some false pretext, or with intent to deprive the owner of the value of the property and appropriate it to the use of the taker, with an actual appropriation. If there be consent to the taking, and this consent is not obtained by false pretext, or there is no intent to deprive the owner of the value, accompanying the taking, there can be no theft under articles 745 and 748. That there was no false pretext used by appellant is clear; hence, to convict under this indictment, the proof must show that the fraudulent intent existed at the time of the taking. This must be shown to the jury beyond a reasonable doubt and to this court with reasonable certainty.
Applying the facts of the case to these rules they, the facts, fail to establish the intent with reasonable certainty, and to hold them sufficient to sustain the verdict would be a dangerous precedent. "If, when appellant took the money, he believed he had *339the consent of the owner, in the absence of false pretext, he is not guilty of theft, though he may afterwards convert the same to his own use, etc.; and, notwithstanding the learned judge gave to the jury a very clear and excellent charge in all other respects, we think the circumstances of this case demanded this proposition to be submitted to the jury, it having been requested by the defense. «
Opinion delivered April 11, 1887.Because the evidence is not sufficient to support the verdict, and because the court failed to give the fourth charge requested toy appellant, the judgment is reversed and the cause remanded.
Reversed and remanded.