The plaintiff in error, G. W. Brant, was convicted in the county court of Ellis county, on an information wherein he was charged with the larceny of hog wire fence of the value of Nineteen Dollars and Seventy-five Cents, the property of Ober McFarland, and was sentenced to pay a fine of Ten Dollars and the costs.

From the judgment he appealed by filing in this court March 13, 1915, a petition in error with case-made.

The Attorney General has filed a confession of error for the reason that the evidence wholly fails to show the felonious taking of the property in question.

After a careful examination of the record we are satisfied that the evidence wholly fails to show the commission of the offense charged.

The facts briefly stated are that the defendant and the complaining witness homesteaded claims in the same neighborhood, and about four years prior to the commencement of the prosecution the complaining witness removed to the state of Illinois, and his placé was practically abandoned. He did not testify on the trial.

The defendant as a witness in his own behalf testified that he had the owner’s permission to take and use the property, and that he took the hog wire in question and placed it on another division fence where some hogs were breaking through into an adjoining corn field.

*607 All the witnesses admitted that the defendant openly stated that he was going to take and use, the wire fence temporarily for that purpose, and it is undisputed that he returned the wire fence.

It is our opinion that the verdict is contrary to the law and the evidence. The judgment is' reversed and the cause remanded with direction to dismiss.