Appellant was convicted of the larceny of wheat, and appeals. The order of proof was a matter of discretion with the court, which was not abused in this case. The conclusions of witness Werhahn, identifying the wheat, were not objected to at the time. Facts, too, were stated which formed a chain of circumstances rendering the proof of value following competent. Identification of appellant by one witness was sufficient to carry the case to the jury. It was not improper for witness Clare to give his version of his talk with the county attorney, and the form in which it was given was not materially prejudicial.
The difference between the weight of evidence read to the jury by the stenographer and evidence which in the presence of the jury he read to himself and then stated to the jury is not sufficient to work a reversal of the case.
The word “should,” as used in the instructions to the jury, conveyed the sense of duty and obligation and could not have been misunderstood. The evidence in the case is sufficient to uphold the verdict.
Section 293 of the code of criminal procedure reads:
“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
The judgment of the district court is affirmed.