On the motion for a new trial it was urg ently insisted that the verdict was contrary to the evidence. To illustrate this position a brief summary of the facts is necessary. . Defendant was indicted for a burglarious breaking, in the nighttime, of the blacksmith shop of one Broughton, with the fraudulent intent to steal certain corporeal personal property contained in said house, belonging to the said Broughton. It was shown by the evidence that the door of the blacksmith shop had been broken, and that the burglar after entry had broken open a chest in the shop and taken therefrom a brace. On the same night the storehouse of one Brown had been burglarized, his safe blown open, and several hundred dollars abstracted therefrom. So strong is the evidence that there can scarcely be a shadow of doubt but that defendant and another party broke into the blacksmith shop, took the brace, then went to Brown’s store, entered that, broke open the safe and *273stole the money. Hear Brown’s store, lying under a wagon, the next morning after the burglaries, Broughton found his brace which had been stolen from the blacksmith shop.

It is contended that this state of facts shows that, though defendant broke into the blacksmith shop and took the brace, he was not guilty of the theft of the brace, because his intention in taking it was not to appropriate it permanently, but only to use it temporarily in the breaking into the safe of Brown, and that, after he had accomplished that temporary purpose for which he had taken it, he had left or abandoned it where found.

In his charge to the jury the learned judge did not submit the issue to the jury as to whether or not the brace was taken from the blacksmith shop with a view to a permanent appropriation or a mere temporary use of it. Ho exception was taken to the charge as given, nor was any instruction specially requested of the court, and the point raised was not made until it was presented in the motion for a new trial. If the matter, however, was part of the law made necessary by the facts that it should be given, then and in such case the omission to charge upon that phase of the case would be reversible error, even though the charge was not excepted to nor special instructions upon the point requested; because in felony cases the charge must “distinctly set forth the law applicable to the case,” “whether asked or not.” (Code Crim. Proc., art. 677.)

What is the law? Mr. Wharton says “it should be remembered that every taking of the property of another without his knowledge or consent does not amount to larceny. To make it such it must be accompanied by circumstances which demonstrate a felonious intention to deprive the possessor permanently of the thing taken.” (1 Whart. Crim. L. (8th ed.), § 883.) In Johnson v. The State, 36 Texas, 375, it was held that in order to constitute the crime of larceny the taking of the property must be with the felonious intent of permanently depriving the owner of his property, and the same doctrine was again held by our supreme court in Blackburn v. The State, 44 Texas, 457, and in Rodrigues v. The State, decided 30th April, 1875, and by this court in Loza v. The State, 1 Texas Ct. App., 488.

In Rex v. Crump, 2 Carrington & Payne (12 Eng. C. L.), 372, it was held that if a person stealing other property take a horse, not with intent to steal it, but only to get off more conveniently with the other property, such taking of the horse is not a felony.

In theft the taking must be with fraudulent intent; must be to “ deprive the owner of the value of the same and appropriate it to the use or benefit of the person taking.” (Penal Code, art. 745.) If the *274intent to deprive the owner of it is wanting, the offense is not theft. Mr. Archbokl defined a larcenous intent at common law thus: “ Where a man knowingly takes and carries away the goods of another, without any claim or pretense of right, with'intent wholly to deprive the owner of them, and to appropriate or convert them to his own use.” And Chief Justice Eyre in Pear’s case defined the offense thus: “ The wrongful taking of goods with intent to spoil the owner of them lueri causa.” (State v. Shermer, 55 Mo., 83.)

Whether the taking was fraudulent or not depends in all cases upon the intent or the purpose with which the property was taken, and that intent is to be determined by the jury upon all the facts and circumstances of the case. Upon this point Mr. Archbold says: “In all cases of larceny the questions whether the defendant took the goods knowingly or by mistake; whether he took them bona fide under a claim of right or otherwise; and whether he took them with intent to return them to the owner, or to deprive the owner of them altogether and to appropriate or convert them to his own use, are questions entirely for the consideration of the jury, to be determined by them upon a view of the particular facts of the case.” (2 Archb. Crim. Pr. & Pl. (8th ed.), p. 1184. See, also, Hart v. The State, 57 Ind., 102; State v. Hawkins, 8 Porter (Ala.), 461; Phelps v. The People, 55 Ill., 334; State v. Scott, 64 N. C., 586.)

In Fields v. The State, 6 Cold. (Tenn.), 524, it was held that to constitute larceny the taking must be without color of right and to deprive the owner permanently of his property. And in that case, which was for theft of certain tools paxvned by defendant for whisky, it is said, “ the court correctly stated to the jury that the taking must be done without the least color of right or excuse for the act, and with intent to deprive the owner not temporarily but permanently of his property.”

In Blackburn’s case, already cited above from 44 Texas, 457, Chief Justice Eoberts says: “The charge of the court should further have submitted the question under the evidence to the jury whether Blackburn took the horse to use him temporarily as an estray, or to make property of him by converting him to his own use as a permanent appropriation.”

In the case we have in hand it was an issue in the case, made by the facts proven, whether the taking of “the brace” from the blacksmith shop of Broughton was for a mere temporary use or for a permanent appropriation. It was in fact the only issue raised by the evidence. Defendant had the right to have it submitted to the jury for their determination, and it was not for the court to ignore *275it in his charge. It may be said that its submission to the jury would not have affected the result in so plain a case. Perhaps so, but it is not for us to say or presume what might or might not have been the result of such a charge. We are not authorized to presume anything in favor of a charge in a felony case which does not “ distinctly set forth the law applicable to the case.” The last Legislature were asked to confer upon this court some authority, where in our opinion the rights of a defendant could not have been injured, in matters of error committed in the charge (See Attorney-General’s Report, 1884, p. 19), and the Legislature declined to make any changes in the law as it is.

Because the charge of the court did not present the law applicable to the case, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

[Opinion delivered May 20, 1885.]