In this case the appellant has been convicted of the theft of one head of neat cattle, the alleged property of one A. C. Smith.
The conviction is decidedly against the great preponderance of the evidence.
Even one of the State’s witnesses, John McBride, who was an expert in brands, says he examined the brands upon the animal in question carefully, and he gives it as his opinion that Smith’s brand could never have been changed into the brands upon the animal without “leaving some parts of the old brand so it could be seen.”
. Several witnesses testified for defendant, and their statements agreed with that of the witness McBride. Defendant’s witnesses—that is, several of them-—testify most positively to facts which go to establish, in our opinion, a case of mistaken identity as to the animal on the part of the prosecuting witnesses. One or more of these witnesses swear most posi*372lively that Smith’s supposed stolen animal is still in his accustomed range, and that they have seen him on the range since this prosecution was instituted. Three of these witnesses and defendant got up and penned this animal, and went and requested the prosecutors to come and see it and. satisfy themselves of their mistake, and the prosecutors declined to do this small favor, not to characterize it as a small act of simple duty and justice.
These prosecutors were present, and not only helped the defendant and others to drive the animal to the place where he sold it, but though they say they recognized it from the start, they interposed no objection and made no claim to it until after it was sold and defendant had been paid for it and gone home.
It does look to us, in the light of these facts, that there was, to say the. least of it, strong grounds upon which to base á most reasonable doubt of defendant’s guilt.
Defendant’s counsel, in closing his earnest written argument in this, case, says: “Smith’s steer is still upon the range. The steer Reynolds
(appellant) sold to Cutbirth is still in Cutbirth’s possession, and if this court sends this case back for a new trial I shall have both animals at. court, so that witnesses may inspect both and the truth be demonstrated.”
The statement of facts impresses us with the probability that this can be done.
We are of opinion the court below should have granted a new trial; and because in our opinion the verdict and judgment are against the evidence;, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.