¶1Appellant was tried and convicted upon the first coiint in the indictment; which charged him with having unlawfully, wilfully, and fraudulently taken into his possession the animal mentioned in the indictment, and driven the same from its accustomed range, without the consent of the owner, the prosecution being based on Article 749 of the Penal Code.
¶2The offense, as denounced by the statute, is limited and qualified by the word “ wilfully,” which, in legal parlance, means with evil intent, or that the act was done without reasonable ground to believe that the same was lawful. (Owens v. The State, 19 Texas Ct. App., 242; and authorities cited.)
¶3When the evidence, as shown by the statement of facts, is subjected to the test of the above definition of the word “wilful,” as used in the statute, we are of the opinion that it is wholly insufficient to support the judgment of conviction rendered in the lower court. On the contrary, it shows that appellant thought he had the right to take the animal in question, and, in our opinion, he had good reasons, as shown by the evidence, upon which to base his belief.
¶4In view of the evidence disclosed, we do not think this conviction should be permitted to stand as a precedent; wherefore the judgment is reversed and the cause is remanded.
¶5Reversed and remanded.