To sustain this conviction it is essential that there should be proof, clear and certain, that the alleged stolen animal was the property of some other person than the defendant, at the time it was taken by him. The evidence before us fails to show this important fact with that degree of certainty which the law demands. On the contrary, there is very positive testimony that the animal belonged to the defendant at the time he took it, and at the time it was regarded as an estray, and was estrayed by White.
By direct testimony the defendant proved that the animal was the offspring of a cow which belonged to his daughter, and that he had traded with his daughter for said animal before the same was taken by him; that said animal was marked in his mark while it was a calf, and remained on his place, and with his cattle, until it was about one year old, when it disappeared, and was not again seen ,by him until he found it in the possession of White, when it was about three years old.
We are of the opinion that the evidence does not support the conviction. If the defendant is in fact guilty of the theft it is *565better that he should escape punishment than that he should be punished upon uncertain and insufficient proof.
Opinion delivered June 23, 1886.The judgment is reversed and the cause remanded.
Reversed and remanded.