¶1ON state’s motion for rehearing.
¶2On original submission we found but one troublesome ques*209tion, which is based on the contention that appellant did not have his defense submitted to the jury by a proper affirmative charge. This question was considered by all members of the court and the original opinion expressed the view of each at the time. The question admittedly is a close one. Whatever doubt may exist in the minds of the members of the court properly should be resolved in favor of appellant. After further consideration of the question, however, we have concluded that the charge submitted was sufficient. From it we quote the following:
¶3“You are charged that if you believe the defendant, Wilson Harrison, took the cattle belonging to P. K. Ballard, if you find that he so acted under a mistaken belief that they were his cattle, or those of his and his father’s, in good faith, believing the cattle were his own property, or those of himself and his father, and such belief did not arise from want of proper care on his part, or if you have a reasonable doubt as to whether or not he acted under such mistake, you will acquit the defendant and say by your verdict ‘not guilty’.”
¶4“To constitute theft, the fraudulent intent must have existed at the time when the property was taken.
¶5“You are charged that if you entertain a reasonable doubt as to whether at the time the defendant took the cattle belonging to the prosecuting witness, P. K. Ballard, if he took them, he did so with the intent to deprive the owner of the value of the same and to appropriate the same to the use and benefit of the defendant, then you will acquit the defendant and say by your verdict, ‘not guilty’.”
¶6In the opinion of the writer, it is immaterial as to what took place in Fort Worth. The jury was definitely instructed that they must find the intent in the mind of the accused “at the time when the property was taken.” The jury could not have misunderstood that this charge referred to the loading of the cattle in Breckenridge. As so construed his defensive issue was affirmatively submitted, and we think the case should have been affirmed.
¶7The State’s motion for rehearing is granted. The order reversing the case is withdrawn and the judgment of the trial court is now affirmed.