Clarke v. State

41 Neb. 370 | Neb. | 1894

-Ryan, C.

The plaintiff in.error was convicted in the district court of "Webster couuty upon the charge of unlawfully and feloniously stealing, taking, aud leading away a gelding. The evidence showed that the horse led away from the livery stable of F. M. Reed was the property of the accused. There was evidence that it had previously been levied upon by a constable under and by virtue of a writ of attachment in his hands, issued in an action pending before a justice of the peace in said county, the accused being the defendant named in said action. The horse was, after the levy, placed in the livery stable of F. M. Reed for safe keeping, from whence it was removed by the plaintiff in ■error. The conviction was upon an information which alleged that the horse was owned by E. M. Reed. . It is quite possible that the accused should have been punished for his misconduct. We are unable, however, to.find any justification in the statutes of this state .for convicting him of larceny, under the proofs as made. The judgment of the district court is .

Reversed.