There are two counts in the indictment; the first charging the theft of a mule, the property of E. J. Ash-*738burn, and the second, embezzlement of the same mule. The conviction is upon the second count.
Opinion delivered June 27, 1888.The facts are, in substance, as follows: Ashburn owned two mules, one of which was in McLennan county and the other in Wharton county. Ashburn lived in the former and defendant in the latter county. Defendant, being in the former county, bought the two mules of Ashburn, agreeing to pay therefor mie hundred and fifty-five dollars, payable October 1, 1888, and to give him his note with security for said amount, and was not to remove the mule in McLennan county from said county until he-had paid therefor, or had given said note with security. Said mule, however, was delivered to him, and he did remove it to his home in Wharton county without paying for it or without giving said note with security. Ashburn was well acquainted with defendant, knew where he lived and knew he had removed said mule to Wharton county, and took no legal steps to assert his rights in the premises for several months after said removal, when he instituted this prosecution, and had the defendant arrested, and, at the same time, he took possession of the said mules and sold them in Wharton county.
In our judgment, these facts do not constitute either theft or embezzlement, or any other offense against the Penal Code of this State. They show simply a breach of contract on the part of defendant, for which Ashburn had his civil remedy. Instead of showing that the defendant was actuated by a fraudulent intent in the transaction, the evidence shows that no such intent existed in his mind. He violated the contract in removing the mule from McLennan county, but it is very clear that by this act he did not intend to fraudulently convert said mule to his own use, or to depriv Ashburn of its value. His correspondence with Ashburn, and other circumstances in evidence, show that his intention in relation to the mules was not fraudulent, but that he intended and. expected to pay Ashburn therefor before the payment under the contract was due; and doubtless would have done so if he had not been prevented by the acts of Ash-burn.
Because, in our opinion, the evidence fails to show that any offense against the law has been committed by the defendant, the judgment is reversed and the cause remanded.
Reversed and remanded.