Ben Winn v. The State, 17 Tex. Ct. App. 284

White, Presiding Judge. A second and more mature and critical examination of this case, occasioned by appellant’s motion for a rehearing, has led us to the conclusion that the motion should be granted, the judgment of affirmance set aside, and the judgment of conviction be reversed because of the insufficiency of the evidence to sustain it. It was in proof that appellant had horses upon the.range besides those which were penned with the colt, and which had been sold by him before he branded the colt.

He claimed the colt as his own,, and so claiming, branded it openly and publicly, and then turned it out on the range where his other horses, unsold, were running. Ho exception was taken to the charge of the court as given, but, with a view to this evidence, it would perhaps be well on another trial for the charge to submit the issue of a taking under an honest though mistaken claim of right. (Bray v. The State, 41 Texas, 203; Varas v. The State, 41 Texas, 527; Harris v. The State, 2 Texas Ct.

App., 102.) Because we are of opinion that the evidence is not sufficiently certain in establishing a fraudulent intent in the taking of the animal by defendant, the rehearing is granted, the judgment of affirmance set aside, and the judgment of the court below reversed and the cause remanded for a new trial. Reversed and remanded. [Opinion delivered December 6, 1884.]