¶1The conviction in this case was for the theft of a hog, the property of J. L. Sanson.
¶2It is shown by the evidence in this case that the defendant took the hog openly in the day-time, in the presence of quite a number of his neighbors, under a claim of property, from his own hog range, upon which he had running at the time a large drove of hogs.
¶3Under such a state of case, there 6not being the slightest circumstance tending to show that defendant knew that the hog was the property of Sanson when taken, the jury should have acquitted the defendant. (Kay v. The State, 40 Texas, 31; Bray v. The State, 41 Texas, 204; Id., 608; Smith v. The State, 42 Texas, 446; Seymour v. The State, 12 Texas Ct. App., 391; Id., 490; Id., 208; Evans v. The State, 15 Texas Ct. App., 36; 8 Texas Ct. App., 64; Ainsworth v. The State, 11 Texas Ct. App., 339.)
¶4The verdict not being supported by the evidence, the court below should have granted the appellant a new trial. The judgment is reversed and the cause remanded.
¶5Reversed and remanded.
¶6[Opinion delivered June 3, 1885.]