
    MILLER v. STATE.
    (No. 4341.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1917.)
    1. Larceny <&wkey;3(2) — Intent at Time of Taking.
    In order to constitute theft under the general statute, the fraudulent intent to deprive the owner of his property must exist at the time of the taking.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 4; Dec. Dig. <&wkey;>3(2).]
    2. Larceny <&wkey;15(l) — Intent — Holding Horses for Pasturage Charges.
    Where appellant took and advertised horses for sale to secure his pasturage charges, and later removed them from the county, and the matter was in dispute in justice court, the original taking was not fraudulent for the purpose of depriving the owner of his property, and did not constitute theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 39, 40; Dec. Dig. &wkey;15(l).]
    3. Larceny <&wkey;70(3) — Instructions — Applicability to Issue.
    Where the original taking was not fraudulent, a charge that where property is stolen in one county the taker may be prosecuted in any county into which he has carried the property, was not appropriate.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 185; Dec. Dig. &wkey;70(3).]
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Columbus Miller was convicted of theft of horses, and appeals.
    Reversed and remanded.
    D. G. Hunt and E. A. Hill, both of East-land, and Penix & Miller, of Mineral Wells, for appellant. E. B. Hendricks, Asst Atty. Gen., for the State.
   DAYIDSON, P. J.

The indictment contains three counts. Appellant having been convicted under the first count, the others are not noticed. It charged him with an ordinary theft of horses.

There are several questions raised by exceptions to the charge and the introduction of testimony. Without going into a discussion of these seriatim, the main proposition turns upon whether or not the state has made a case of theft, conceding all the facts for the state. Appellant was in charge, if not the owner, of certain landed property. There is a question as to whether or not the mother-in-law of the alleged owner of the horses owned or controlled 80 acres of the tract of land. There is considerable testimony pro and con in reference to this matter. There was also a question as to whether appellant had the right of pasturage, or controlled that matter, when stock were placed In the pasture. There seems to be no question of the fact that he controlled it, unless it was as to the 80 acres. That was a disputed issue to some extent, and it was also a question as to whether or not the mother-in-law of the alleged owner really owned or controlled the land. Castleberry owned some horses; these he desired to pasture on the tract of land mentioned, and had one or more conversations with appellant with reference to placing the horses in the pasture. It was agreed, however, they should be sent to the pasture, and were sent. There were several conversations between appellant and Castleberry with reference to payment of pasturage. Castleberry undertook to make arrangements to satisfy appellant about the pasturage, but failed. Appellant then took in charge two of the animals alleged in the indictment and advertised their sale to pay pasturage, which seems to have amounted to about $60. A day or two before the advertisement was complete Castleberry instituted suit and: sequestrated the animals. This suit was in the justice court. Directly after this appellant replevied the horses, gave bond, and took charge of them. The case tried in the justice court resulted in favor of appellant. Castleberry appealed to the county court. In that trial Castleberry won. Appellant had carried about that time the horses to Palo Pinto county; all these other matters having arisen in Eastland county. This is a sufficient statement of the facts, and under this statement appellant claims that the ease, from any viewpoint, could not. present one of horse theft.

In order to constitute theft of property under the general statute, the original taking must be fraudulent; that is, at the' time of the taking the fraudulent intent existed to deprive the owner of the value of the property and excluded the idea that the party had any right to take the property.

As we understand this record there is nothing to indicate any fraudulent intent on the part of appellant at the time he took the horses up and advertised them for sale for the purpose" of securing his pasturage on these and the other horses. If the pasturage was due and he took up the horses and advertised them for sale in order to secure the payment of this pasturage, it would not be taking for the purpose of fraudulently depriving Castleberry of his property or its value. The civil proceedings indicate that it was a disputed issue, with rather a preponderance of evidence in favor of appellant, that the pasturage was owing and due, and that Castleberry had failed to pay the pasturage, and appellant took this method of securing the payment of such pasturage. From no viewpoint would this be a fraudulent taking under the statute of theft. Whatever may have "been the result of the litigation, the horses were taken for the purpose originally of paying the debt due from Castleberry to appellant. This would not be a fraudulent taking, whether the steps taken were critically legal or not. It seems in the justice court the trial resulted favorably to appellant by awarding him the horses, and under this view of it he carried them to Palo Pinto county, where this prosecution was instituted.

It is unnecessary, under this view of-the case, to discuss the charge of the court, which was given at the instance of the state, that where property is stolen in one county the taker may be prosecuted in any county through or into which he carried the property. Appellant had carried the property from Eastland into Palo Pinto county. If the original taking was not fraudulent, this character of charge was inappropriate, and was not authorized. Believing, as we do, under the facts, there could he no theft or original fraudulent taking, that charge should not have been given, but beyond this, under the facts the state has failed to make out a case of theft, and the conviction ought not to have occurred.

The judgment is therefore reversed, and the cause remanded.

MORROW, J., absent. 
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     