(dissenting). Appellant was convicted of the larceny of four hogs, for which he was sentenced to the penitentiary for two years upon the following condition of evidence: Enoch Kendle lost four white hogs about 10 months old, marked crop and two splits in each ear. Before the hogs were lost, defendant (appellant) was at Kendle’s house, who showed him the hogs and told him he wanted to keep them. When Kendle missed his hogs from the range, he went to appellant and inquired if appellant had seen anything of the hogs which he had shown him. Appellant said he did not know anything about them and had not seen them. Afterwards Kendle met Johnnie Richards, who informed him that he had seen appellant driving the hogs. Kendle went to appellant and told him that he (appellant) had his hogs, and that he had to bring them back or pay for them. That appellant said he *566would pay for them and would leave the money at the butcher shop, That he failed to leave the money at the butcher shop. That Kendle and his brother went to appellant's house and asked why he had not left the money at the butcher shop as agreed. Appellant said he did not have all the money, but would pay $10 and would pay the rest in a day or so. This was refused by Kendle, who a few days later went to town, and Walter Mickle, appellant’s brother, paid him $20 in a check. That Kendle had given no one permission to take the hogs. John Richards testified that he saw the appellant drive four hogs along about 100 yards from where he was; that they looked like Kendle’s hogs,- and he thought that they were Kendle’s hogs, but was not positive. Walter Kendle, brother of the complaining witness, corroborated him with reference to the offer of appellant to pay $10 for the hogs. Appellant denied that he had taken Kendle’s hogs, or that he had ever ’ offered to pay for the hogs, and produced testimony showing that he had lived in Kendle’s neighborhood, had raised hogs, and that he had brought some hogs from that neighborhood in his own mark, had penned them, and kept them in the pen several weeks; that when Kendle came to him he had told him that, if he could produce the man who had seen him driving Kendle’s hogs, he would pay for them; that he had never authorized his brother to pay for these hogs, because they were his (appellant’s), and further testified (which was contradicted by Kendle) that he had told Kendle where the hogs in dispute were and asked him to go see them, which Kendle refused to do. Upon this state of evidence, under the. instructions of the court, appellant was convicted and sentenced to the penitentiary for two years. It is true that on the record no special instructions were asked by appellant of the court below, and all the. instructions of the court seem to have been recognized as proper by appellant in his trial. Under the evidence, but four things were shown against this appellant: *567First, that the prosecuting witness (Kendle) lost four white hogs in the Central district of Indian Territory about December, 1902; second, that the defendant (appellant) was seen driving four white hogs along the road; third, that appellant denied knowing anything about the hogs Kendle had lost, but promised to pay for them, if he had Kendle’s hogs, and would leave the money for them at the butcher shop, which promise was denied, and afterwards offered Kendle $10 as part payment, which offer was also denied; fourth, that appellant’s brother, without his consent, and against the wish of appellant, paid the prosecuting witness $20 in order to stop the fuss. No one, except a boy, John Richards, attempts to identify the hogs driven by defendant (appellant) as the hogs of the prosecuting witness, although the testimony of appellant is that he claimed the hogs Richards speaks of as his own, and shows such hogs to have been kept in appellant’s hog pen subject to the view of his neighbors and of the prosecuting witness for a number of weeks, and that one of such hogs, at the time of trial, was still alive and in possession of the appellant. John Richards said he thought the hogs he saw appellant driving were Kendle’s hogs, but was not positive; that he only saw them as appellant was driving them, and about 100 yards away.
Where, under this evidence, is there proof of any larceny? It is the duty of the government in a case of larceny to prove by evidence,certain essential things: That within the jurisdiction of the court, and within the time of limitation of the law, the defendant stole, took, and carried away (as in this case) hogs of some value, and that such hogs were the property of some particular person, and that such taking was without the consent of the owner. Under this testimony, where is there any proof whatever that the hogs seen by Johnnie Richards were the hogs which were lost by the prosecuting witness? No one testified positively that these were Kendle’s hogs. *568Kendle himself never saw his hogs after he lost them, although, from the testimony, he could easily have gone to appellant’s house and identified his hogs. On the motion for new trial appellant offered, if given an opportunity by new trial, to show that Kendle made contradictory statements, to his testimony on the trial that he had never recovered his lost hogs; the statement made to one T. T. Neal being as follows: “Kendle said he had sold a hog * * * for $20. I asked him who he sold it to, and he said he heard that Bd. Mickle had stolen some of his hogs, and he wanted pay for them, and Ed. would not pay for them, and Walter Mickle paid him $20 to stop the racket, and a while after he received this money he found three of the hogs that he though Ed. Mickle had taken. I did not know there was any 'trouble about these hogs, and I didn’t tell this until now.” This affidavit was made March 22, 1905; the trial having been on March 15, 1905. Under ordinary conditions this affidavit might not be sufficient to cause a court to set aside a verdict on the ground of its being newly discovered evidence, where the facts of larceny were conclusively established; but, where the evidence is not conclusive, and where there is no identification of the property claimed to have been stolen, should not a court, under such circumstances involving the liberty of appellant, give heed to testimony, which, if true, shows beyond question that appellant was not guilty of the larceny of Kendle’s hogs, and shows Kendle’s mendacity, as newly discovered», testimony? I think so.
I think the evidence in the case insufficient to warrant a conviction, and I think upon the motion for a new trial same should have been granted, and that it was error in the cóurv below not to have granted a new trial' in this case.