White, Presiding Judge.
Early Evans, sr., and this appellant were jointly indicted, tried and convicted for the' theft of one certain head of neat cattle, the property of Frank Wassaberger. On the motion for a new trial the verdict and judgment were set aside as to Early Evans, sr., and overruled as to this appellant.
We have considered the record before us with great care, and our conclusions are that the judgment should be reversed and a new trial awarded. There can be no doubt, from the evidence, that Early Evans, sr., and Wassaberger, the prosecutor, each owned' an ox, which in general appearance and flesh marks corresponded with the other, and both animals seem to have gotten away from the possession and control of the owners, that is, they strayed off.' Early Evans’s ox strayed off in the fall of 1879 or spring of 1880, and Wassaberger’s strayed off in the fall of 1881. The ox in controversy, that is, the one about which this prosecution originated, came to the place occupied by one Capps,'in 1880, and stayed with his animals until 1882, when he, learning that it belonged to Evans, sr., sent him word- to come and get it, and appellant, for his father, did go. and get the ox. Sometime afterward, Wassaberger claimed the ox, and Evans, *37sr., refusing to give it up, because he claimed it as his own property, the parties agreed to arbitrate the question of title at Bryan, on the ensuing Saturday. On the day named the parties met at Bryan for this purpose, and Wassaberger testifies that soon after he met defendant, defendant said “the steer is not ours, and you can take it—it is yours.” And Early Evans said: “I knew all the time the steer was not mine, but my children led me into it, and Mr. Capps sent me word the steer was eating his cotton seed, and if it was mine, to take it away, I told my son Early to go after it, and he brought it home. We would not have taken it, but we needed an ox to work.” The statement as to these declarations is corroborated by two or three of the other witnesses for the State. According to McQueen’s testimony, Evans, sr., came into his store “in a great state of excitement and alarm, and asked him to go out there; that they were going to take his ox. That. he had agreed, to save trouble, to let Wassaberger take him.” McQueen says: “I went out and found Wassaberger in a terrible rage, cursing and swearing. There was a crowd collected up round the steer, and some excitement.” “It was finally agreed that Wassaberger should take the ox and give bond and security in the sum of twenty-five dollars, conditioned that it should be void if, in a suit to establish the onwnership of the ox, Wassaberger recovered the ox; if not, to remain in full force.” We have not the slightest doubt but that the jury seized upon these imputed declarations of Evans, sr., as positive evidence of the guilt of defendants. Without these declarations, and laying them aside, there is not a particle of evidence of guilt; and in our opinion, the evidence outside these declarations would, by preponderance, were it a civil action to try title, establish defendant’s claim. How, what effect should be given to these declarations, or supposed admissions or confessions, in a criminal prosecution for theft? Taking into consideration the attendant circumstances, to wit: the excitement, the cursing and swearing of Wassaberger and friends, the alarm of the Evanses, who were negroes, we say concede that these admissions and confessions were made, are they conclusive evidences of guilt? In Beck’s case, 44 Texas, 430, where the defendant had altered the brand, and denied that he had possession of an animal in the owner’s brand, Judge Moore says: “The denial of a known fact, and attempt to conceal, destroy or pervert evidence of the owner’s title to property, or which is calculated to prove guilt, may, and doubtless often *38does, occur from cowardly fear of a groundless charge based upon suspicious circumstances. A fraudulent and dishonest purpose to retain property to which one has no just claim, is by no means inconsistent with the absence of a felonious intent in its original acquisition.” How much more frequently does a cowardly fear impel even honest men to yield up their own property to the unjust and illegal demands of others. Besides this, after these admissions, Wassaberger executed a bond with a view to try the right to the property to this same animal, which Evans, sr., still claimed to own. We do not think the evidence to establish theft sufficient, and in consideration of its peculiar character, we are of opinion that the court should have granted a new trial, that the defendant might have had the benefit of the additional newly discovered testimony as to his title and ownership of the ox.
Opinion delivered November 7, 1883.
We are also of-opinion that the court erred in refusing the several requested special instructions asked in behalf of defendant. The points presented in these instructions were not submitted as clearly, if at all, in the charge as given, and they certainly embodied the law upon material issues in the case, as follows:
“2. If the defendants took the ox under a real claim of title, they are not guilty, and you will acquit.
“4. If it is not shown by the evidence, beyond a reasonable doubt, that the ox taken by defendants was actually and really the property of F. Wassaberger, you must acquit.”
Mr. G-reenleaf says: “Where the goods were taken under a claim of right, if the prisoner appears to have had any fair color of title, or if the title of the prosecutor be brought into doubt at all, the court will direct an acquittal, it being improper to settle such disputes in a form of process affecting men’s lives and liberties or reputation.” (Note 1, sec. 157, vol. 3, Greenl. Ev., citing 2 East. P. C., 659; State v. Bond, 8 Iowa, 540.)
For the errors noticed, the judgment is reversed and cause remanded.
Reversed and remanded.