168 N.W. 167 | S.D. | 1918
Appellant was convicted o|f the larceny of 50 head of sheep, and, from the judgment of conviction, and! an order overruling his motion for a new- trial, 'hé appeals to this court.
Appellant assigns the insufficiency of the evidence to support the verdict' and newly-discovered evidence, as well as errors of law committed hy the trial count. The larceny is alleged to have been committed under the following circumstances: Appellant and the prosecuting witness, Bates by name, were engaged in the sheep 'business. Each had a drove of sheep, on neighboring ranges in Butte county. In the vicinity of these ranges' were certain sheep ■pens where sheepmen in the surrounding neighborhood brought their sheep at shearing time to. have them1 sheared. During the shearing season of 1916 appellant and Bates, hy chance, 'brought their sheep to! these pens at the same time. Appellant had his sheep in the two droves, or band's, of about sixteen or seventeen hundred head, respectively, while Bates claimed to have had fifteen hundred and thirty-four head in his drove. A herder by the name of Oleson had charge of one of defendant’s droves of sheep., while- another herder by the name of Grayson had charge of the other. The Oleson band: was taken to ■the shearing pens first. ■ The work of shearing his band1 of sheep was interfered with and delayed' b>y rain and bad' weather, and it was some eight or ten days fromi the time they reached the pens
“N'oiw, gentlemen, -on the other hand, -the defendant Demerly, as I understand it, claims that he did -n-ot know that the sheep were in his bunch and -did not lcnlciw that they were being sheared- as his sheep, and that he did not know there were any sheep belonging to Bates and' Humphrey in his ¡bunch, until he was- ‘informed by Mr. Bates, and that immediately u-po-n being informed lire) went with Mr. Bates and allowed Mr. -Bates to pick his sheep- out of the b-unch. Now, gentlemen, if that is the case, the defendant would not be guilty.”
Under this -instruction, which was accepted as the law in th-e -case, and which we believe to- be correct, tihe question of defendant’s guilty knowledge is of -equal importance with -the question
The judgment -and order appealed .from -are reversed.
While refraining-from, -placing any construction upon section 606, Penal-Code, I-concur in holding that the judgment and".order appealed! from should be reversed. I so concur 'because I am of the opinion ¡that the evidence was wholly insufficient to support the verdict.