103 So. 366 | Miss. | 1925
Lee desired to buy a Ford automobile, and did not have enough money to pay for it, and went to Ladner and asked him to indorse his, Lee's, note at the bank for three hundred dollars and, induced said Ladner to do so, and gave Ladner a deed of trust on certain cattle described as follows:
"one red-sided heifer with white back and belly, two years old; one deep red cow, seven years old; one red and white faced cow, eight years old; one blue-sided, white back and belly cow, seven years old."
The cattle were not pointed out to Ladner at the time of the transaction. Lee and his family owned a herd of cattle variously estimated at from twenty-five to forty-five head. The money was borrowed from the bank on the note signed by Lee and Ladner together, the car was purchased, and the note was renewed once, but finally was paid by Ladner. About a year and a half after the transaction arose Ladner sent the sheriff to the dipping vat where the cattle were being dipped in that neighborhood to get the cattle covered by the deed of trust from Lee's herd of cattle. The sheriff went and picked out a number of cattle conforming to the description contained *709 in the deed of trust. Lee informed the sheriff that the cattle selected by the sheriff were not the cattle upon which the deed of trust was given; that they belonged to his wife and son; and that the cattle on which the deed of trust was given were not in the herd at that time. However, the sheriff took charge of the cattle, and Mrs. Lee and her son replevied them. Thereupon Ladner procured an indictment of the appellant, and appellant was tried and convicted of the offense charged, and appeals from said conviction.
The question presented is the sufficiency of the evidence to sustain a conviction. Ladner testified for the state as to the transaction, and stated that Lee gave him the description of the cattle called for in the deed of trust, and procured him to sign a note, and that he, Ladner, had to pay the note at the bank, and that Lee represented to him that he owned the cattle covered by the deed of trust; that he first sent one Leon Strahan to get the cattle and see the sheriff and when he went to get the cattle that Lee said his wife owned the cattle; that Ladner pointed out the cattle to the sheriff and the sheriff brought them in; that the result of the replevin suit was that Mrs. Lee and her son recovered the cattle; that he had known Lee's cattle about seventeen years. He was then asked the question:
"Q. Tell the jury whether he had any more cattle there which would answer the description he gave? A. He did not.
He was then asked as to the description of the cattle contained in the deed of trust, and answered that Lee had some red cattle, but none of that age; that Lee had never repaid the money; that he, Ladner, would not have indorsed Lee's note at the bank except for the representations made to him by Lee about the cattle. On cross-examination Ladner was asked how far he lived from Lee, and answered, "Four and a half miles." He was asked:
"Q. You are familiar with his cattle? A. Yes, sir. *710
"Q. How many cattle did he own at that time? A. Twenty-five or thirty head.
"Q. Give us the description of the twenty-five or thirty head he owned? A. Various colors.
"Q. Name some of them? A. Most of them were red, and some white and red.
"Q. I see some red ones here? A. Yes, sir; and he had other red cows besides that.
"Q. He had other red cows of the description given here? A. No. sir.
"Q. How do you know? You didn't see them at all when the deed of trust was given? A. No, sir; but I know his cattle.
"Q. How do you know that it was a deep red one that he gave the deed of trust on? A. He said the deep red cow.
"Q. You don't know anything about his cattle except what he told you? A. I saw his cattle very often.
"Q. Isn't it a fact that at that time, T.U. Lee only owned four cows and ten head of oxen? A. I do not think he owned anything the way he gave the deed of trust. I know the stock of cattle that stayed at his home that he claimed were his.
"Q. Can you swear upon your oath to the jury that on the day he gave you this deed of trust that he did not own the cattle described in the deed of trust? A. No, sir.
"Q. So far as you know of your own knowledge the day he gave you the deed of trust he was the owner of the cattle described in the deed of trust? A. Yes, sir.
"Q. As far as you know that is true? A. Yes, sir, I know he claimed them.
"Q. You cannot say on your oath that he did not own them on that day? A. No, sir; he could not have sold them the day before."
Other witnesses were introduced, but were unable to describe the cattle particularly. They all stated that Lee had a herd of cattle, twenty-five to forty-five head of various colors, but they could not identify a particular, description of any of the cattle. Mrs. Lee, the wife of *711 the appellant, and two sons and the appellant all testify that the appellant at the time of the giving of the deed of trust owned cattle of the description therein contained and some oxen, but that he did not own the balance of the herd, and that, after giving the deed of trust, the Lee family moved away for about three months, going to some sawmill, and that while they were absent from home some of the cattle strayed away and others died; that they lost some twelve or fifteen head of cattle; and that the cattle covered by the deed of trust were among the missing. They testified positively on this point, and gave the names of close neighbors who they stated would know about their cattle. These neighbors lived some nine miles from the courthouse, and were not brought into court by the state.
The testimony of the witnesses for the state is indefinite. They found cattle of the description called for in the deed of trust a year and a half after the deed of trust was given, and at that time did not find any other cattle fitting the description. It is impossible to say from the testimony of the state's witnesses beyond a reasonable doubt that the appellant did not own, at the time he gave the deed of trust, the cattle described in it. The proof for the defendant is positive and emphatic that he did own such cattle and that they have since died or disappeared. The mind does not rest with entire confidence upon the defendant's version of the facts. It may be that he procured his wife and sons to claim the title, and they may be testifying falsely about the matter. Nevertheless the state's witnesses when cross-examined could not stand up to the test of personal knowledge, and the criminal law requires the proof to show guilt beyond a reasonable doubt. There is nothing that contradicts directly the defendant's version of the affair, and it is not wholly improbable on its face. We think the evidence fails to exclude reasonable doubt, and therefore that it is insufficient.
The judgment will therefore be reversed and the case remanded.
Reversed and remanded. *712
