This conviction was for the theft of a hog, alleged to be the property of J. J. Fitzinger.
The evidence in this case is very meagre indeed. Witness Burns drove to his place a bunch of hogs, among which was a black and white spotted hog, marked with an underslope in each ear. The witness said that the defendant claimed this mark, to wit, the under-slope in each ear. Burns had frequently seen this hog on the range prior to the time when he drove them to his place. When he first saw it, it was marked with a hole in one ear and a swallow-fork in the other. This was the mark of Fitzinger.
Later on he saw it, and the mark had been changed to a swallow-fork in each ear, and when last seen by Burns it was marked with an underslope in each ear; which mark was claimed by the defendant. This was not only the defendant’s mark, but he claimed the black and white spotted hog in question, through purchase from one Bill Dickinson. Burns knew this hog to be the property of the prosecutor Fitzinger.
*338On the same day that Burns drove the hogs to his pen, G. W. Small drove them to his house. In this bunch there were some in G. W. Small’s mark, some in the mark of the defendant, and some in the mark of other persons. G. W. Small killed some and turned out some, but did not turn out those in the mark of the defendant. The spotted hog marked with an underslope in each ear was in the bunch taken by G. W. Small to his place, and was taken by defendant from his father’s, as was supposed by G. W. Small, to defendant’s house. G. W. Small simply supposed that the defendant had taken the hog from his pen, because of its being in his mark; not that he had seen him take it, nor that the defendant had confessed that he took it. Burns was certain that this hog was the property of Fitzinger.
These are, substantially, all of the criminative facts of the case. What inculpatory fact is there in this case upon which this conviction can be sustained? That he claimed a certain hog in his mark which belonged to another ? This will by no means suffice. He not only claimed the mark and the identical hog, but also, as a basis for such claim, stated that he had purchased the hog from one Bill Dickinson. Was there any attempt on the part of the State to disprove this statement? Hone whatever.
Again, was the defendant ever shown to have been in possession of the hog? Only by inference. His father supposed, as the hog was in his mark, that he took it from his pen with the rest of the hogs which belonged to him.
But, suppose the proof was positive that he did take the hog from his father’s pen, and carried it to his house, this would simply amount to recent possession and nothing more, which is not sufficient to convict; the rule being that recent possession of stolen property, unexplained when called upon directly or circumstantially to explain, will warrant a conviction of theft.
We are of the opinion that the verdict is not supported by the evidence, and that the court below should have granted a new trial. The judgment is therefore reversed and the cause remanded.
jReversed and remanded.
[Opinion delivered June 3, 1885.]