Darnell v. State , 43 Tex. Crim. 86 ( 1901 )

At a former day of this term this case was reversed and remanded. The State strongly insists that we were in error in holding that the court's charge on appellant's claim of right was too restrictive, and cites us to a number of cases which, it is insisted, support the State's contention that in the cases cited a similar charge, or one still more restrictive, has been approved by this court; and our attention is especially called to the case of Ledbetter v. State, 35 Texas Criminal Reports, 195. In that case the charge predicated on the defense of a real claim of right or title was approved. Every case is more or less sui generis, and it is only necessary for the court to charge in each case upon the particular issue presented. Where the issue, as in the case cited, is simply one of title, — the State contending that he had no real claim of title, and appellant contending that he did have a real claim of title, — the charge might be restricted to this issue. But where, as in this case, the testimony would seem to suggest that the title was in the prosecutor, and appellant's defense consisted in a claim or title to the animal in question, and as to his bona fide belief that the animal in question was his father's and that he had a right to take it, the court should go further, and instruct the jury that, although they might believe the title to the animal in question was in the prosecutor, still if they believed that appellant honestly believed at the time he so took the animal that it was his father's, or if they had a reasonable doubt on that subject, they would acquit him. We understand that Kay v. State, 40 Tex. 29, and other cases cited by State's counsel, announce this doctrine. In all thefts the taking must be a fraudulent taking, and if there is a question of title or a claim of title, which is not fabricated, the taking would amount to a mere trespass. We understand the rule laid down by the authorities on this subject to be as follows: That it must be proved (1) that the property taken did not belong to the accused; (2) that he did not believe it to be his own when he took it; (3) that it was fraudulently taken. Johnson v. State, 41 Tex. 608. So that if, in any given case, the person taking reasonably believes that the property is his, or that he has authority from the owner to take it (that is, if the proof shows that he took it honestly believing he had a right to do so), he is entitled to be acquitted, although he should be mistaken, and he in fact had no real claim to the property in question. And where the proof presents the issues of honesty or good faith in the taking, although it may appear to the judge trying the case to be incredible or unreasonable, still he should give a proper charge to the jury on the subject, so as to permit them to pass upon the issue. And in this case we do not think it was sufficient, under the proof, for the court to restrict the jury to a fair claim of title or a color of title, as we discussed in the original opinion, as such a charge did not cover the exact issue. We would not be understood as questioning the principle that, where property is 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, it will be the duty of the court to direct an acquittal, such a case involving a mere trespass. Harris v. State, 17 Texas Crim. App., 177. This is not at war, but in consonance with, the further proposition, that if property is taken under an honest belief that he has a right to take it, he has a right to a charge on that subject, though in fact he does not have any fair title or color of title to the property. He may be mistaken as to the identity of the animal in question, or he may be mistaken as to the validity of the title claimed by him. The motion for rehearing is overruled.

Motion overruled.