Owens v. State ( 1886 )

Wills ox, Judge.

After a careful consideration of the voluminous record in this case, our conclusion is that this prosecution involves nothing more than the trial of the right of property to a certain colt. It very clearly appears that defendant owned a colt which resembled the one in controversy. It is equally clear that Basey owned a similar colt. On the part of the State there is positive testimony that the colt in controversy was the property of Basey. On the other hand, defendant proved as positively that the colt was his property. As to the ownership of the colt, therefore, the evidence is conflicting, and upon this point we would not disturb the verdict of the jury.

But there can be no theft unless a fraudulent intent is shown to have existed in the mind of the accused, at the time of the taking. Thus, in this case, although the colt may in fact have been the property of Basey, and taken by the defendant without the consent of Basey, still such taking would not be theft, unless the evidence shows a fraudulent intent on the part óf defendant, accompanying the act of taking. We think the evidence in this case fails to show such intent. It impresses us with the conclusion that the defendant took the colt believing that it was his property, and that he had good reasons for so believing. To our minds the usual indicia of theft are wholly wanting in this case. There was no concealment, or attempt at concealment. The colt was taken openly, under a claim of title thereto, and when Basey claimed the colt the defendant persisted in’ his claim thereto, and proposed to submit the question of the right to the colt to arbitration, which proposition Basey declined. We are clearly of the opinion that the evidence does not show a fraudulent intent accompanying the act of taking, and that therefore the conviction is not sustained by the proof. The court erred in not granting defendant a new trial because of the insufficiency of the evidence, and for this error the judgment is reversed and the cause is remanded.

Other errors assigned are not noticed in this opinion, because they are of a character not likely to occur on another trial.

Reversed and remanded.