As directly and pertinently applicable to the facts proven on the trial, we are of opinion the court erred in refusing the first special instruction asked for defendant, as follows, viz.:
“In order to convict the defendant of the crime charged in the bill of indictment, you must be satisfied beyond a reasonable doubt that he not only did appropriate the cattle of J. R. Johnson, as alleged in the bill of indictment, but that the intent of the defendant to deprive the owner of the value thereof (if you should find that such intent existed) existed at or before the taking; and in this connection I further charge you that, if you should find from the evidence that the cattle alleged to have been stolen followed defendant and got into his herd, and that after-wards he formed the idea of fraudulently appropriating the same to his own use and benefit, he could not be convicted of theft.” There was no similar instruction embraced in or covered by the the general charge. Under our statute, “the taking” essential to constitute theft “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.” (Penal Code, art. 727.)
The felonious intent is the essential ingredient of the crime, and, “to constitute theft, the taking of the property must, in the first instance, have been fraudulent; and, if the possession be obtained lawfully, no subsequent appropriation, however fraudulent the intent, will suffice to constitute the taking theft, unless such lawful possession was obtained by means of a false pretext, or with the fraudulent intent at the very time of the taking to deprive the owner of the value of the property and to appropriate the same to the use or benefit of the taker.” (Hernandez v. The State, 20 Texas Ct. App., 151; Morrison v. The State, 17 Texas Ct. App., 34; Atterberry v. The State, 19 Texas Ct. App , 401; McAfee v. The State, 14 Texas Ct. App., 668; Johnson v. The State, 1 Texas Ct. App., 118; Spinks v. The State, 8 Texas Ct. App., 125.)
Under the particular facts proven in this case, we are further of opinion that the charge did not present the law applicable to an important phase of the case. It is a rule well settled that, “In cases where there is evidence from which the jury might infer that the taking was not fraudulent, it is the right of the defendant to have them clearly instructed as to the distinction *242between trespass and theft.” (Bray v. The State, 41 Texas, 203; Ainsworth v. The State, 11 Texas Ct. App., 339.)
Opinion delivered November 9, 1887.We will not discuss the facts (which the Reporter will give fully), but content ourselves with the remark that, upon the matter of fraudulent intent at the time of taking, or whether they establish sufficiently a fraudulent intent at all, is a matter of very serious doubt in our minds.
For errors in- the charge, as above pointed out, the judgment is. reversed and the cause remanded.
Reversed and remanded.