delivered the opinion of the court.
Thе three defendants, who come to us as appellants, stand convicted of grand larceny for feloniously stealing 5,000 bushels of wheat. Their principal contention on appeal is that the state’s evidence, both at the close of the state’s case in chief and at the close of all the evidence, was insufficient to support a verdict of guilty. They suggest the vеrdict of the jury was the result of passion and prejudice.
Ted Munn, Manager of the Tri-County Elevator in Chugwater, Wyoming, testified he received a telephone call from a person who identified himself as Larry Morgan. The caller stated he was buying grain for Farmer’s Elevator Company, Sterling, Colorado. Grain was ordered *204 which was to he picked up by three trucks. As a result of the call, 5000 bushels of wheat at $1.45 per bushel was delivered into three trucks driven by the three defendants.
Larry Morgan testified he did not make the telephone call to Ted Munn; that he did not order' any wheat from Munn or Tri-County Elevator Company; that he did not authorize or direct anyone to pick up wheat at Tri-County Elevator Company in Chugwater at any time; and that no grain was received by him or his comрany from Tri-County.
Attorneys of the attorney general’s office point out that defendant Robert Broyles and defendant Glenn Neеl testified they did not sign their proper names and instead signed fictitious names on the scale tickets; also that they did not write cоrrect license numbers of the trucks on the tickets. Defendant Richard Broyles testified he was present when the wrong names werе signed to the scale tickets.
Of course felonious intent to steal is an essential element of the crime charged against the defendants, and the state has the responsibility of proving such intent by competent evidence. It is apparent from thе record in this case that the most damaging evidence against defendants, as far as felonious intent is concerned, is the testimony concerning fictitious names and license numbers.
However, the admissions of defendants pertaining to fictitious names and liсense numbers came during the case of defendants and not as a part of the state’s original case. Except for this еvidence, which was supplied during defendants’ defense, it is doubtful whether there was substantial evidence of felonious intent.
A motion for directed verdict in favor of defendants was made at the close of the prosecution’s case in chief, and it was denied. Thus, we need to decide whether a motion for directed verdict at the end of the state’s case is waived when defendants offer evidence in their own behalf. We have so held several times, in civil cases. In re Shreve, Wyo.,
Our review of cases on this point convinces us that the same rule has been universally followed in criminal cases to the same extent as it has in сivil cases; and that it can be stated as an accepted principle that, even if the evidence at the close of the state’s case is not sufficient to warrant a conviction, when a defendant proceeds with his case, his guilt or innocence will be determined by the evidence as a whole. 23A C.J.S. Criminal Law § 1148, p. 391; 5 Wharton’s Criminal Law and Procedure, § 2073, p. 230, including n. 8 for § 2073, p. 230, 1968 Cum.Suрp.
Typical of the cases holding to this effect are: State v. Thomas,
The evidence we have referred to did cоnstitute substantial evidence of felonious intent, and we must hold the evidence of guilt sufficient to support the verdict and judgment in this case. Having so held, we would have no basis for accepting defendants’ claim that the verdict was the result of passion or рrejudice.
Other Assignments
The deputy sheriff who arrested defendants Richard Broyles and Neel at Lincoln, Nebraska, testified ■ at the trial. He wаs asked what was done with Neel and Richard Broyles, and in his reply he stated among other things that they were informed of their rights. No objеction was made to the question asked or to the answer given at that point.
Counsel for defendants now argue that, inasmuch аs there was no testimony pertaining to a statement taken or attempt to take a statement from defendants, the defеndants were deprived of their right to re *205 main silent and right not to be required to testify. The argument seems strange to us, especially in viеw of the fact that defendants did remain silent as they had a right to do, and they were not required to testify. No authority has been citеd to us which supports the argument and we are content to disregard it.
Although counsel suggests that the state concealed аnd withheld evidence that a fourth person was present when the trucks were loaded, he concedes his claim in that regard is directly contradicted by the sheriff who is supposed to have concealed the evidence and that appellate rules therefore dictate that we should hold with the state on this assignment.
We find an additional reason for holding against the аssignment. The defendants advanced the theory in their defense that a fourth person was present and offered testimony to that effect. They knew the facts regarding the presence or absence of the person in question as well, if not better, than did the prosecution. All that is now claimed is that information about a fourth person was “within the knowledge” of the sheriff.
We do not construe appellants’ claim to mean the sheriff personally saw the fourth person on hand when the grain was loaded. Thе sheriff was not there. That certain information was within his knowledge appears to be an unwarranted conclusion on the part of counsel for defendants.
In any event, we say there is an additional reason for holding against the claim that evidence was concealed because appellants have not shown us that, even if there was such concealment, it prejudiced the defendants in any way. Rule 61, W.R.C.P., which is applicable in appeals to this court in criminal cases, provides that harmless error is to be disregarded. See Robertson v. State Highway Commission, Wyo.,
Finding no reversible error with respect to any оf the assignments brought to our attention by appellants, we conclude the verdict and judgment of the district court should be sustained.
Affirmed.