No. 19,370 | Kan. | Jul 10, 1915
The opinion of the court was delivered by
A reexamination of the abstract in addition to a reading of the transcript itself discloses that Draper, who charged the defendants with stealing five of his turkeys thought he counted his flock on the 21st, for he counted them almost every day, and at noon on the 23d he missed five. Having-tracked the horses to the Cole place, and there measured their hoofs, the measuring stick being produced at the trial, the shoes of the defendants were measured, but were found not to correspond to the tracks in the alfalfa field, and the stick used in such measurement was not even preserved. The prosecuting witness was able to identify only two turkeys, and some doubt might well be raised as to one of these. It is fairly well established that shortly before this some of the defendants’ turkeys strayed away nearly to the Draper farm and had been brought home. The defendants showed a readiness to produce the horses for examination and to permit Draper to examine the turkeys on the place, and while they were said to have shown some nervousness this would have no bearing on the time of the alleged offense. On the night in question the defendants drove along the road by the Draper place. This is admitted. The main circumstances pointing to their guilt were the possession of the two turkeys claimed by Draper and the hoof prints found in the alfalfa field between the road and the turkey pen. The'fact that the footprints were not shown to correspond at all with the shoes of the defendants makes it
One or two inaccuracies of statement in the former opinion have been pointed out, but they are not substantial, and the decision already rendered will remain the conclusion' of the court.