¶1This case was tried by the court without the intervention of a jury. A statement as to the conclusions formed by him is made by the county judge as follows, viz:
¶2“ This cause was submitted to the court, and from the evidence the court found the defendant guilty, concluding that *211defendant took the corn in question to pay himself for what he considered the prosecuting witness owed him, without his consent and in his absence.”
¶3If this finding of the court is correct—and we concur in its correctness as shown by the facts before us—then the defendant, however liable he might be in trespass, is not guilty of theft. A fraudulent intent is the essential ingredient of theft, and this intent must exist at the time of the taking. “ The taking must be an actual and intended fraud upon the rights of another; the taking must include the purpose and intent to defraud; it must be an intentional taking without the consent of the owner, an intentional fraud, and an intentional appropriation.” (Mullins v. The State, 37 Texas, 337; Johnson v. The State, 1 Texas Ct. App., 118.)
¶4All the circumstances attending the taking, as developed in the statement of facts, indicate to our minds a total want of those criminal elements which constitute theft.
¶5The judgment is reversed and the cause remanded.
¶6Reversed and remanded.
¶7Opinion delivered May 19, 1883.