
    B. Hardeman v. The State.
    Theft.— Appellant was convicted of theft of a steer upon proof that the animal was running on the range, and that the appellant, falsely claiming it as his, made a bill of sale of it to one W., and received pay for it from the latter. But the animal was never in the posses-' . sion, actual or constructive, of the appellant or his vendee. Held, that there was no such a taking or possession as is necessary to constitute theft.
    Appeal from the District Court of Williamson. Tried below before the Hon. W. A. Blackburn.
    The case is sufficiently stated in the opinion. A term of four years in the penitentiary was the punishment assessed against the appellant.
    
      A. W. Terrell, and Makemson, Fisher & Price, for the appellant.
    
      H. Chilton, Assistant Attorney General, for the State.
   Hurt, J.

Black Hardeman was convicted of the theft of a steer, the property of Mrs. Jennie May.

The evidence fails to show that the steer was ever in the possession of the defendant. To constitute theft there must be a fraudulent taking by some person. In this case the defendant did not take the animal, nor did Galvin Wear, to whom defendant sold the animal; and if Wear had taken the property, his taking would not have been fraudulent, but honest, he having bought and paid for it, and received the bill of sale for the steer.

This steer, running on the range all the while, was not taken fraudulently or otherwise by any person; hence there was no theft.

The judgment is reversed and the cause remanded.  