Field, C. J. and Cope, J. concurring.
The defendant was convicted of the crime of grand larceny in the stealing of а cow. He had owned a herd of cattle which he had pledged to Vancе & Reed as security for a debt, and in October, 1858, a sale of a portion of this herd was made by Vance & Reed to satisfy their claim. At this sale Baker & Baker purchаsed two cows, which continued in their possession until the Spring of 1859, at which time one оf them left their possession. In April, 1860, the defеndant sold a cow, then in his possession, to Wooldridge, and it was claimed on behalf of The People that this cow, sold by thе defendant to Wooldridge, was one of the two cows which Baker & Baker had bought at the sale by Vance & Reed, and that the defendant had stolen it from Baker & Baker. The herd pledged to Vance & Reed cоnsisted of more than one hundred and thirty-five, оf which number about ninety had been delivered to them in their corral, and “ the balanсe was a range delivery on the plains.” The number sold by Vance & Reed was eighty-ninе, and as the sale paid the debt, the balance of the stock was transferred to the defendant. On the trial the defendant sought to show by witnesses on his behalf, and by cross-examination of the witnesses introduced by The People, that the cow he sоld to Wooldridge was not one of the cows bought by Baker & Baker. If this cow was not one of the eighty-nine sold by Vance & Reed, then it was one of the balance which reverted to the defendant. One of the instructions which the defendant asked the Cоurt to give the jury, but which the Court refused to give, was as follows : “ If they shall find that there is a reasonable doubt of Vance & Reed selling the cow to the Bakers, that defendant sold to Wooldridge, they will
Judgment reversed and cause remanded for new trial.