Willson, Judge.
1. There was some conflict in the testimony as to the value of the saddle alleged to have been stolen, and there was, also, a question raised on the trial as to the proper standard of value. Evidence was admitted, over objection made by defendant, of the value of the saddle to the owner of it. In the charge of the court, the jury were not instructed as to any standard by which to determine the question of value. Upon this subject, the defendant requested the following special instruction, viz.: “The value of property is not to be based on what the owner may value it, but is to be fixed by its intrinsic value.” This was refused.
It was important in this case for the jury to-ascertain, correctly, the value of the saddle, because upon that value de[128]*128pended the grade of the offense and its punishment. If worth twenty dollars, or more, the offense was a felony; if less than that sum, it was only a misdemeanor. There was testimony both ways upon this question, some of the witnesses testifying that the saddle was worth more, and some that it was worth less than twenty dollars. Under these circumstances, we think the court should have instructed the jury as to the proper standard by which to arrive at the value of the property.
What is this proper standard in cases of theft? Mi'. Bishop says: “The word ‘value’ is, like most others, even in legal language, slightly variable in meaning; but, ordinarily, for the purposes of this inquiry, it signifies the sum for which the like goods are, at the time, commonly bought and sold in the market. If a thing has a value to the owner, though to no one else, to steal it is larceny, its ‘value, as to the rest of the world,’ being, in the language of Grose, Judge, ‘immaterial.’ Still, in determining the grade of the Pífense, the value merely to the owner is not the standard for the jury. Yet, a thing not bought and sold in the market may have a value, as when it is an article fitted for a specific use of the owners, and worthless for every other purpose. To attempt to test it by the open market, where it is never offered for sale, and is never bought, would be absurd. In reason, the cost of replacing it would ordinarily be the standard of its value.” (2 Bish. Crim. Prac., sec. 751.)
Adopting the foregoing as the correct rule, the proper standard of value in this case was the market value of the saddle, if there was any market for such property. If it had no market value, then the amount that it would cost to replace it would be the standard of its Ayorth. While the special instruction requested by defendant upon this subject did not correctly prescribe the standard of value, it was sufficient to call the attention of the court to that issue in the case, and to the fact that the law upon such issue had been omitted in the court’s charge. It was error, in our opinion, to fail to instruct the jury as to the proper standard of value.
2. As to the mode of proving value in trials for theft, Mr. Bishop says: “Any evidence from which the jury can "infer the value of a stolen chattle is competent; as what the owner testifies of its value to him, the opinions of witnesses acquainted with the value of like property, what such property has brought at actual sales, etc.” (2 Bish. Crim. Prac., sec. 751.) We are of the opinion that, under the rule above quoted, the testimony [129]*129objected to by defendant to prove the value of the saddle was admissible.
3. The saddle stolen was found in the possession of one Crecencio Bueno, who testified that he bought it from the defendant. No other witness proved that defendant ever had possession of that identical saddle. On cross-examination of this witness, the defendant’s counsel asked him the following question: “Did your wife, in your presence, and at your house, and in the presence of Juan Montez and F. Galan, on the tenth day of December, 1883, deny that the saddle was in your house, and deny all knowledge of said saddle?” This question was propounded for the purpose of laying a predicate to impeach this witness, by showing his complicity in the theft of the saddle. It was objected to by the district attorney, and the court sustained the objection. In the bill of exceptions to this ruling, the learned judge gives his reasons for the ruling, as follows: “Because the question asked seeks to elicit the statements, if any were made, of a third party, who is the wife of the witness; because it seeks to elicit a statement of a third party at the time the saddle was discovered, when the State sought to elicit everything that was said at that time and place, in its examination of this witness and F. Galan in chief, and which was excluded by the court, on objection of counsel for defendant; because the question relates to what a third party said, if anything, in which the defendant nor the witness had any participation; and because said testimony is inadmissible and irrelevant, and does not inform the jury of anything material in connection with the cause.”
We differ with the learned judge upon this question; and do not think that the reasons assigned for his ruling are sound. For the purpose for which the question was asked, we think it was legitimate. If the witness was present, and heard the persons who were in search of the saddle inquire for it and describe it, and heard his wife assert to them that it was not there, and that she had no knowledge of it, and ne remained silent, knowing at the same time that tne saddle was in his house, and in his possession, it seems to us that these facts would bear strongly against the credibility of this witness, and might reasonably be calculated to influence the minds of the jury in weighing his testimony. To say the least of it, it would be a circumstance tending to cast a suspicion upon the witness that he was an accomplice in the theft of the saddle. The question was not obi [130]*130jectionable because it sought to elicit statements made by the wife of the witness. It was not a violation of the rule that the husband or the wife shall not be allowed to testify against each other, for the witness was not upon trial for any offense. Nor can we perceive why the question should be held improper because the State had sought to prove all that was said on the occasion of the discovery of the saddle, but had not been permitted to do so, upon objections interposed by the defendant. The State was not entitled to prove what was said on that occasion, the defendant not being present, and such testimony was properly rejected. But, because the defendant did not choose to allow, without objection, illegal testimony to be introduced against him, is he to be denied the right of introducing that which is legal, and which he conceives to be to his advantage? Clearly not, we think.
A, There is another question in this case of more importance than those we have discussed. Conceding that the defendant took the saddle, did such taking, under the facts of this case, constitute theft? and did the court charge all the law applicable to the issues raised by the evidence? That the owner of the saddle had lost it was proved beyond a question. It was, then, lost property, but was, nevertheless, the subject of theft. To constitute theft, however, the fraudulent intent, which is the gist of this offense, must exist in the mind of the taker at the very time of the taking; and, in the case of lost property, the time of the taking is the time of the finding of the property. If the fraudulent intent did not exist at the time of the taking, no subsequent fraudulent intent in relation to the property will constitute theft. (Robinson v. The State,
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Willson, Judge.
1. There was some conflict in the testimony as to the value of the saddle alleged to have been stolen, and there was, also, a question raised on the trial as to the proper standard of value. Evidence was admitted, over objection made by defendant, of the value of the saddle to the owner of it. In the charge of the court, the jury were not instructed as to any standard by which to determine the question of value. Upon this subject, the defendant requested the following special instruction, viz.: “The value of property is not to be based on what the owner may value it, but is to be fixed by its intrinsic value.” This was refused.
It was important in this case for the jury to-ascertain, correctly, the value of the saddle, because upon that value de[128]*128pended the grade of the offense and its punishment. If worth twenty dollars, or more, the offense was a felony; if less than that sum, it was only a misdemeanor. There was testimony both ways upon this question, some of the witnesses testifying that the saddle was worth more, and some that it was worth less than twenty dollars. Under these circumstances, we think the court should have instructed the jury as to the proper standard by which to arrive at the value of the property.
What is this proper standard in cases of theft? Mi'. Bishop says: “The word ‘value’ is, like most others, even in legal language, slightly variable in meaning; but, ordinarily, for the purposes of this inquiry, it signifies the sum for which the like goods are, at the time, commonly bought and sold in the market. If a thing has a value to the owner, though to no one else, to steal it is larceny, its ‘value, as to the rest of the world,’ being, in the language of Grose, Judge, ‘immaterial.’ Still, in determining the grade of the Pífense, the value merely to the owner is not the standard for the jury. Yet, a thing not bought and sold in the market may have a value, as when it is an article fitted for a specific use of the owners, and worthless for every other purpose. To attempt to test it by the open market, where it is never offered for sale, and is never bought, would be absurd. In reason, the cost of replacing it would ordinarily be the standard of its value.” (2 Bish. Crim. Prac., sec. 751.)
Adopting the foregoing as the correct rule, the proper standard of value in this case was the market value of the saddle, if there was any market for such property. If it had no market value, then the amount that it would cost to replace it would be the standard of its Ayorth. While the special instruction requested by defendant upon this subject did not correctly prescribe the standard of value, it was sufficient to call the attention of the court to that issue in the case, and to the fact that the law upon such issue had been omitted in the court’s charge. It was error, in our opinion, to fail to instruct the jury as to the proper standard of value.
2. As to the mode of proving value in trials for theft, Mr. Bishop says: “Any evidence from which the jury can "infer the value of a stolen chattle is competent; as what the owner testifies of its value to him, the opinions of witnesses acquainted with the value of like property, what such property has brought at actual sales, etc.” (2 Bish. Crim. Prac., sec. 751.) We are of the opinion that, under the rule above quoted, the testimony [129]*129objected to by defendant to prove the value of the saddle was admissible.
3. The saddle stolen was found in the possession of one Crecencio Bueno, who testified that he bought it from the defendant. No other witness proved that defendant ever had possession of that identical saddle. On cross-examination of this witness, the defendant’s counsel asked him the following question: “Did your wife, in your presence, and at your house, and in the presence of Juan Montez and F. Galan, on the tenth day of December, 1883, deny that the saddle was in your house, and deny all knowledge of said saddle?” This question was propounded for the purpose of laying a predicate to impeach this witness, by showing his complicity in the theft of the saddle. It was objected to by the district attorney, and the court sustained the objection. In the bill of exceptions to this ruling, the learned judge gives his reasons for the ruling, as follows: “Because the question asked seeks to elicit the statements, if any were made, of a third party, who is the wife of the witness; because it seeks to elicit a statement of a third party at the time the saddle was discovered, when the State sought to elicit everything that was said at that time and place, in its examination of this witness and F. Galan in chief, and which was excluded by the court, on objection of counsel for defendant; because the question relates to what a third party said, if anything, in which the defendant nor the witness had any participation; and because said testimony is inadmissible and irrelevant, and does not inform the jury of anything material in connection with the cause.”
We differ with the learned judge upon this question; and do not think that the reasons assigned for his ruling are sound. For the purpose for which the question was asked, we think it was legitimate. If the witness was present, and heard the persons who were in search of the saddle inquire for it and describe it, and heard his wife assert to them that it was not there, and that she had no knowledge of it, and ne remained silent, knowing at the same time that tne saddle was in his house, and in his possession, it seems to us that these facts would bear strongly against the credibility of this witness, and might reasonably be calculated to influence the minds of the jury in weighing his testimony. To say the least of it, it would be a circumstance tending to cast a suspicion upon the witness that he was an accomplice in the theft of the saddle. The question was not obi [130]*130jectionable because it sought to elicit statements made by the wife of the witness. It was not a violation of the rule that the husband or the wife shall not be allowed to testify against each other, for the witness was not upon trial for any offense. Nor can we perceive why the question should be held improper because the State had sought to prove all that was said on the occasion of the discovery of the saddle, but had not been permitted to do so, upon objections interposed by the defendant. The State was not entitled to prove what was said on that occasion, the defendant not being present, and such testimony was properly rejected. But, because the defendant did not choose to allow, without objection, illegal testimony to be introduced against him, is he to be denied the right of introducing that which is legal, and which he conceives to be to his advantage? Clearly not, we think.
A, There is another question in this case of more importance than those we have discussed. Conceding that the defendant took the saddle, did such taking, under the facts of this case, constitute theft? and did the court charge all the law applicable to the issues raised by the evidence? That the owner of the saddle had lost it was proved beyond a question. It was, then, lost property, but was, nevertheless, the subject of theft. To constitute theft, however, the fraudulent intent, which is the gist of this offense, must exist in the mind of the taker at the very time of the taking; and, in the case of lost property, the time of the taking is the time of the finding of the property. If the fraudulent intent did not exist at the time of the taking, no subsequent fraudulent intent in relation to the property will constitute theft. (Robinson v. The State, 11 Texas Ct. App., 403.)
In this case it was proved that on the day the saddle was lost, the defendant was seen in possession of such a saddle, and said that he was going to the city of San Antonio to search for the owner of it in order to deliver it to the owner. He did not then pretend that the saddle belonged to him, but admitted that he had found it, and intended to search for the owner of it. There is no evidence which shows that, even if the defendant took the saddle, he at the time intended to deprive the owner of the value of it, and to appropriate it to his own use or benefit. On the contrary, his own statements above alluded to, which were proved by the State, show that after he had taken the property, his intention with regard to it was an honest one; he intended [131]*131to restore it to the owner, if such owner could be found. Upon this state of facts we think it was the duty of the trial court to instruct the jury clearly and specifically upon the issues as to the intent of the defendant at the time he took the property, if he did take it.
The charge of the court did not explain this issue to the jury any farther than to give the general definition of theft. Defendant requested the following special instruction, which the court refused to give, viz: “If the property came into the possession of the defendant by lawful means, the subsequent appropriation of it is not theft, and you will acquit the defendant, unless it was obtained by false pretext, or with intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking.” This charge would have been more directly applicable to the evidence if it had read: “ If you believe from the evidence that the property was lost, and that the defendant found it, he cannot be convicted of the theft of it unless you believe from the evidence that at the time he found it he fraudulently took it with the intent at that time to deprive the owner of the value of it, and to appropriate it to his own use or benefit. Ko fraudulent intent in the mind of the defendant in relation to the property, which was formed after he had taken the property, will authorize his conviction of the theft of such property.”
We think a charge in substance such as we have suggested was demanded by the evidence in this case, and that the court erred in omitting to give such an one. The charge of the court was excepted to by the defendant, because it failed to give the jury all the law of the case, and for other reasons. We think the court erred in not instructing the jury upon the question of intent as above indicated.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered May 3, 1884