On a former appeal the judgment of conviction in this case xvas reversed for error of the court in refus*279ing to permit defendant to introduce in his behalf certain proposed material evidence. (Heskew v. The State, 17 Texas Ct. App., 161.)

The fifth paragraph of the charge of the court to the jury, if not objectionable on the other grounds urged to it, is clearly obnoxious to the objection that it requires it to be shown that, if defendant took the animal under authority from another party, such party must have had authority to give him such permission. The question was not whether Goodwyn, the party who the defendant claimed had given him authority to take the animal, was in fact authorized to grant such permission, but, under the facts shown, the question was, did defendant take the animal upon the authority of Goodwin and believing at the time that Goodwin had authority to authorize him to do so? Instead of the paragraph five as given, the special instructions requested upon this phase of the case should have been given, and the court fell into an error in supposing that these special instructions were sufficiently covered by the general charge.

These special instructions, which were refused, are as follows: “ If the account given by the defendant of the reasons which induced him to take the animal is reasonable and probably true, or if defendant believed it to be true, whether it was true or not, the jury should acquit the defendant.” “ Whether or not Goodwyn had any authority to sell the animal, or whether he did in fact or not give any authority to defendant to take said animal, if defendant really believed that said Goodwyn did have and did give the defendant authority to take said animal, the jury should acquit the defendant.” Under the very peculiar circumstances of this case, as shown by a previous affidavit of Goodwyn, when considered in connection with Goodwyn’s evidence as a witness, we are of opinion these special instructions should have been given. This affidavit of Goodwyn’s corresponds with defendant’s statement made with regard to the manner in which he acquired and claimed the animal, and, moreover, the State’s witness Bissett corroborates them both as to most of the material facts. In his testimony the witness Goodwyn varied the character of his authority to control and sell the animal from that as stated by the other parties, and also as stated in his affidavit, and denied that he had ever sold or had any authority to sell the animal, or that the brand ever belonged to his cousins; though he admitted that he had told defendant that if he would send him the money he would get him a bill of sale from the owner, and also that defendant had written him for the bill of sale, which letter he never answered.

We do not believe that the evidence upon which this conviction rests, as shown by the record before us, is sufficient to establish de*280fendant’s guilt of the theft of the animal charged, and we are unwilling that it should stand as a precedent. The animal was taken by defendant openly, under a claim of right, was branded and counter-branded by him, and was used by and under his authority publicly > and, more than all, defendant’s statement as to how he came to take and thus claim the animal is in our opinion reasonable, abundantly corroborated, and not disproved by the evidence adduced against him.

Beversed and remanded.

[Opinion delivered May 20, 1885.]