¶1There is but one witness for the State who pretended to identify the cow as the property of Eli Moore, the alleged owner, and he said he knew her by the flesh marks. On the other hand there are witnesses for defendant who are equally as positive that the cow was not Eli Moore’s but defendant’s. Eli Moore’s mark was a crop off and two splits in each ear. The cow in question had a crop off both ears, two splits in one and but one in the other ear. Defendant claimed, all the time, that he had bought the cow, and he proved a purchase and bill of sale, by one of his witnesses. When the cow was demanded of him as the property of Moore, he positively refused to give her up, claiming her as his own, and that he had bought her. So far as his claim to the cow and- his possession of her was concerned, it appears always to have been open, public, notorious, and under a claim of purchase and right. To say the most of it, the evidence of defendant’s guilt'is inconclusive and unsatisfactory, and to our minds preponderates in defendant’s favor as to the ownership of the cow.
¶2The rule is well established that, “where the goods were taken under a claim of right, if the prisoner appears to have had any fair color of title, or if the title of the prosecutor be brought into doubt at all, the court will direct an acquittal, it being improper to settle such disputes in the form of process affecting men’s lives and liberties or reputation.” (Evans v. The State, 15 Texas Ct. App., 31; Smith v. The State, 42 Texas, 444.)
¶3Because the evidence is insufficient to support the verdict and judgment, the judgment is reversed and cause remanded.
¶4Reversed and remanded.
¶5[Opinion delivered November 19, 1884.]