Dissenting. — I cannot concur in the conclusion reached by my associates. And although Mr. Justice Ail-shie in the opinion of the majority of this court has set forth much of the evidence in said case, I shall of necessity have to quote considerable of the evidence literally as it appears in the transcript in order .to show the inconsistency of the defendant’s defense and the conflict in the evidence.
. Samuel Harrop, sheriff, testified that he was acquainted with the defendant and with the horse in question. “He is a little brown horse, branded with three bars on the left shoulder and also JH on the left thigh.I saw the defendant riding *715the horse on the fourth day of July in St. Anthony, Fremont county, Idaho, and had a conversation with him; I talked with the defendant about the horse and about his being a nice little horse, and asked him if the brand on the left shoulder was three bars and he said it wasS’
Ferry Little testified: “I saw the defendant during the month of July and talked with him about the horse; I saw him about the 13th of July, 1903, at St. Anthony; I asked him if he had seen a little brown horse, branded three bars on the left shoulder, during his rides, and he said he had not noticed him, .... and he said if he had seen the horse I was inquiring for he would either send the horse to me or let me know about it; I told him of the three bar brand on the horse. Q. Did you say anything about the color of the horse? A. Yes, sir. Q. What did you say ? A. I asked him about a brown horse, dark brown; the three bar brand was a plain brand, and could readily be seen; the other was quite dim; the.horse was fat in June, fat and sleek, short hair, just shed off; brands are more easily seen during that time of year; when I got the horse from the county stable there was a change in Mm; his foretop was roaclied, and his tail was trimmed out, and he had two shoes on his front feet; there was no shoes on him when we turned him out; the horse was turned over to me by the sheriff, Mr. Harr op.”
Ed. S. Little testified he was acquainted with the defendant and saw him in St. Anthony shortly after he was arrested. ■“He said Ferry had inquired for the horse, but it loolced lilce he had told Ferry a damned lie about the horse, because he didn’t notice the brand on him, the three bars on the shoulder that is, Sejmour had not noticed the brand.”
Cross-examination: “This conversation was just after Mr. Seymour’s arrest and before the preliminary. He didn’t tell me in that conversation who the horse belonged to or how he came to have it.”
Recross-examination: ^Defendant didn’t say at that time that Ferry had spoken of it as a black horse and didn’t mention Himball’s name in the conversation; I don’t think Kimball was *716in town at that time; nothing was said about me seeing Kim-ball, I swear positively to that; Mr. Kimball’s name was not mention ed.”
Emery Seymour testified, on direct examination, as follows: “Birch trimmed his tail and cut his foretop one day while I was away like he did the rest of the saddle horses; I had him shod.I had a conversation with the sheriff, Sam Harrop, in St. Anthony on the 4th of July last in regard to this horse. .... I don’t remember anything being said about the brand in the conversation; if there was I didn’t understand it; there was a large crowd and everybody talking; I didn’t at that time know anything about the horse being branded three bars. The conversation I had with Ferry Little.I met Mr. Little and he asked me if I knew anything of a little black horse that was running with a dock-eared horse that run on Badger creek.I had .a conversation with Ed. Little at the county barn in St. Anthony the day I was arrested. As near as I can remember we were talking about this horse, and 1 told him that Arch. Kimball had told me about the horse; that he told me to get him for him, and referred him to. Arch. Kimball and he didn’t seem to care about talking to me; . . . . I didn’t say to him that I told Ferry Little a damned lie or words to that effect.”
Cross-examination: “In the conversation with Ferry Little at St. Anthony, Idaho, he said something about my brother owning the horse, and I told him my brother owned a good many horses; don’t remember whether he said Kimball once owned the horse or not; don’t think he did. He spoke about my brother owning this horse, this little black gelding; ....,! got the horse in question about the latter part of June; Kimball lived at Victor during last June, twelve or thirteen miles from the range; my ranch is right north of Victor, and Ed. Little’s place is a little bit north of my ranch. I took the horse to St. Anthony because he told us to gather this horse, or get him, and we were coming down to St. Anthony, and I brought him right along; I wrote to Kimball that I had the horse. Q. Ever notify Kimball that you had the horse? A. I wrote him. Q. Did you not testify at the preliminary that you did not notify him ? *717A. I don’t think I did. Q. When did yon write him? A. I don’t know; I wrote him sometime after I took the horse down; I remember now about that. I wrote his brother at Driggs; told him to tell Arch, that I got the horse for him; I had the horse at St. Anthony between two and three weeks; I don’t think I told any of the Littles anything about the order; I had the order at that time; but didn’t mention the fact, but told Ed. Little 1 got the horse for Kimball. Kimball came down the very day I was arrested, I don’t think it was an hour before, and I saw him about the middle of the street, but after I was arrested I told him Kimball was in town, and he could go up and see him; . . . . Kimball never told me in any other way than through the order to get the horse; . . . . Q. You say Bob Birch trimmed out his mane and tail after you got him down to St. Anthony? A. He trimmed his tail out and clipped his foretop out. Q. You did not do this? A. No, sir. Q. Did you not testify at your preliminary examination that you did do it? A. No, sir. Q. I will ask you if in response — if that this was not your testimony? (Soule, reading from defendant’s deposition given at the preliminary.) CQ. Is not the horse in question a very dark brown or black? A. Nothing black about him at all. Q. Did you trim the foretop and tail of the horse in question ? A. Yes, sir. It was trimmed off while I had him.’ Q. And this is your testimony, is it not, Mr. Seymour? A. I don’t know whether it is or not. Q. I will show it to you — here is the question — you may read it, and I will ask you if this is not your testimony, if this is not your signature to it? A. Yes, that is my signature. Q. There is the question. A. I don’t know why I should testify to anything of the kind at all. Q. You did testify to this, did you not? A. I did, I guess. Q. Where did you do this? Where did you trim out his mane and tail, his foretop and tail? A. It don’t seem to me that I trimmed it out at all. We always trim our saddle horse tails out because they catch in the quirt, and spurs; they was unhandy. Q. I will read some more: ‘Did you trim the foretop and tail of the horse in. question? A. Yes, sir. Q. When did you do this? A. Right here at home in twon, on or about the 2d or 1st of *718July.’ I presume it was trimmed about that time; I don’t remember of trimming it myself. ' Q. Is not that your testimony? A. That’s what I testified to there; I don’t remember of trimming the horse’s tail or foretop; have trimmed lots of colts and like as that, but as near as I can remember Mr, Birch done them, although I might have testified that I did at the preliminary; .... when Kimball came to town something was said about the horse; he went down to the store and when I saw him again I was arrested, and the next time T saw him the sheriff was with me; 1 think that was the first time we talked about the horse; he was at the house a very few minutes; I couldn’t say positively if he spoke to me about the horse or not; I know that he knew about it; I knew where Kimball lived; I never notified him in regard to the horse other than through his brother
Archie R. Kimball testified as follows: "I am acquainted with one Jack Edmiston; he is a brother in law of mine; he did reside at Wilson, eighteen miles east of Victor in the state of Wyoming, in the Jackson Hole country. About the Sd or J/.th of July I received through the mail a letter from my brother in law, Jack Edmiston, in reference to a horse. [Witness handed defendant’s exhibit “2.”] This is the letter I received from Jack Edmiston; I am not acquainted with his writing; .... I then went back and wrote this order, and asked Mr. Birch to hand it to him. [Witness handed defendant’s exhibit "1.”] This is the .order I wrote on that occasion; this is my handwriting, and it was written at the Seymour house, and it was the one that I gave to Mr. Birch; I did not at any time after that receive any information with reference to the horse I was writing about, or that the order referred to; I have a brother in that section by the name of Ray Kimball. Q. You may state whether or not you had any communication with him [Ray Kimball, witness’ brother] on the subject? A. Not on the horse; never mentioned the horse to me at all. Q. Did he mention receiving any news about the horse ? A. No, sir.”
Archie R. Kimball, recalled: “I have not talked or corresponded with Mm [Jack Edmiston] about this horse since he wrote me the letter. He left and I never had a chance to write *719him that I found the horse referred to; never wrote him that I had the horse, or that I told Kimball to get the horse; I told Seymour; made no effort to tell Edmiston as to what I had done, and have not since; and didn’t go to St. Anthony to find out about the horse; made no effort to find out whether Seymour had the horse or not, and never hunted for the horse any longer; didn’t care whether I got him or not; I was riding, looking out for stock, after I gave the order; I never bothered my mind about the horse; never inquired whether Seymour got him, eared nothing about it; I came to St. Anthony the day of the hearing; I met Seymour the day of his arrest before he was arrested, and talked a few minutes with him, but said nothing about the horse; didn’t mention it.”
R. A. Birch, cross-examination: “He [meaning Arch. Kim-ball] did not say anything about this horse being the horse belonging to some fellow by the name of Jack Edmiston; .... The only brand I saw on the horse was a lazy JH on the left thigh; I didn’t look for any other, never saw any other brand on the horse, but J did not examine the horse very close; I am not acquainted with the three bar brand; I am not acquainted with the little horse; the horse was in the barn on the 3d of July; I never saw the three bar brand on this home; I rode him several times, and bridled and saddled him several times; what particularly called my attention to the JH brand was by seeing it; the horse was running by me when I noticed the brand.”
In addition to the oral evidence there were four exhibits. One is dated June 27, 1903, and is the order given by Kim-ball to the defendant requesting him to take up and care for the horse in controversy, which letter is quoted in the opinion of Mr. Justice Ailshie. Exhibit “2” purports to be a letter from Jack Edmiston to Archie Kimball, and is also quoted by Mr. Justice Ailshie. Exhibit “A” was a bill of sale written by John Edmiston and introduced as an exemplar. Exhibit “4” was a copy of exhibit “1,” and was written by the witness Kimball during his examination as a witness on the preliminary examination.
*720Seymour’s defense was that be had taken possession of said horse on the request of Kimball as set forth in said exhibit “1,” ■and Kimball testified that he wrote said exhibit “1” because of having received said exhibit “2,” that being a request from John Edmiston to said Kimball to take possession of said horse. It is contended by counsel for the state that both of said exhibits were written by said Kimball, and were written after the defendant had taken possession of said horse. The above testimony shows that he took possession of the horse on •or about the twenty-ninth day of June, 1903. He found him on the range a short distance from the owner’s ranch. Exhibit “A” was shown to have been written by John Edmiston and was introduced as an exemplar, and I think it is clearly evident from said exemplar and the two other exhibits that Kimball wrote both exhibits “1” and “2,” and I think it is clear that said defense of the defendant was clearly a fabrication and gotten up between Kimball and the defendant, and that the jury were fully justified in coming to that conclusion.
Kimball testified that “about the 3d or 4th of July I received through the mail a letter from my brother in law, Jack Edmiston, in reference to the horse.” Said letter was exhibit No. “2.” How would it be possible for Kimball to base exhibit “1,” which is dated June 27, 1903, on a letter not received by him until the third or fourth day of July, 1903? He didn’t receive the Edmiston letter until six or seven days after exhibit “1” was received, and Seymour, according to his •own testimony, had taken possession of the horse about the 29th of June — four or five days before Kimball had received the Edmiston letter. This circumstance is enough to brand both letters as a put-up job, and the jury no doubt so concluded. And again, the sheriff testified that he saw the defendant riding said horse on the fourth day of July in St. Anthony, and had a conversation with him in regard to the horse and asked Tiim at that time if the brand on the left shoulder was three bars, and he said it was. That statement is half denied-by the defendant when he testified that he didn’t remember anything about said brand being mentioned in the conversation -with the sheriff, and that he didn’t know anything about the *721horse being branded three bars at that time. It is a little remarkable that an experienced horseman, snch as the defendant is shown to be, would not notice a plain three bar brand on the left shoulder of an animal that he had ridden a number of times, as the evidence shows he had this horse. The evidence shows that Jie had noticed a very dim lazy JH brand on the left hip, and, as most horsemen mount a horse from the left side, to say the least, it is very remarkable that the defendant observed the very dim brand on the left thigh and had not seen the very plain three bar brand on the left shoulder. Suffice it to say the sheriff swears positively that he asked the defendant if the brand on the left shoulder was three bars and the defendant said it was. This conversation occurred on the fourth day of July.
Ferry Little testified that on about the thirteenth day of July, 1903, he asked the defendant if he had seen a little brown horse branded three bars on the left shoulder, and the defendant said he had not noticed him, and at that time he had this horse in his possession in his pasture some few miles from St. Anthony. Little swears positively that he told the defendant of the three bar brand on the horse and requested him to send the horse to him or let him know if he had found him. Little also described the horses with which the brown horse was running. Defendant denies that Little ever asked him about a little brown horse, but swears he asked him about a little black horse. Isn’t it a little remarkable that the said witness, Little, would ask the defendant about a little black horse when his father had not lost a little black horse, but had lost a little brown horse branded three bars on the left shoulder? Could it be possible that Little was inquiring about a horse that had not been lost? He knew his father had lost a little brown horse with a three bar brand on the left shoulder, and that was the horse that he was inquiring about. Can it be possible that Little requested the defendant to keep an eye out for a horse that hadn’t been lost? The jury evidently didn’t believe the defendant’s story about Little inquiring for a horse different from that which his father had lost. It seems to me that one who would believe that Little was around in*722quiring for a horse that had not been lost must be possessed of an extraordinary amount of childlike credulity, simplicity and faith. It might do to tell such story to the marines, bnt a jury of sensible men were warranted in disbelieving such improbable statement.
And again, E. S. Little testified that he had a^-conversation with the defendant shortly after he was arrested, and defendant stated to witness that Ferry, meaning Ferry Little, the former witness referred- to, had inquired for the horse, bnt it looked like “he had told Ferry a damned lie about the horse, because he didn’t notice the brand on him, the three bars on the shoulder.” The defendant also denies this testimony. The jury evidently believed the testimony of said witness, as it had a right to do. The defendant took this horse from the range not far from Kimball’s ranch, and instead of sending him to Kim-ball, he took him in an opposite direction from Kimball’s ranch to St. Anthony, some forty miles from Kimball’s ranch. He made no effort by letter or otherwise to inform Kimball that he had the horse, except that he says he wrote Kimball’s brother. Kimball testified that he saw his brother every day or so, and his brother didn’t mention the horse or the letter to him. The defendant testified that Kimball knew he had the horse. Kim-ball testified that he knew nothing of the kind.. The defendant testified that he trimmed the horse’s tail and mane and roached his foretop and put shoes on him, and admits in his testimony that he swore falsely in regard to the matter, and that Birch, a friend of the defendant’s, did it. The defendant testified that he told the owner, Little, that he had taken up the horse for Kimball. The owner testified that he never told him anything of the kind. We might go further and show other contradictions, but the above is sufficient. Can it be said after a careful examination of all of the evidence in the case that there is no substantial conflict in the testimony in this case, or that defendant established the fact that he came into possession of said horse innocently? I think not. There is substantial contradiction and impeachment of the defendant, and the jury was fully justified in reaching the conclusion that the defendant was guilty. There were three witnesses procured *723by the defendant who testified nnder the objection of counsel for the state that they had a conversation with the defendant in which he stated to them that he didn’t own the horse, or that he purchased him from some unknown person. Said statements were self-serving, and the jury had a perfect right to so consider them. If in this state thieves are going to be turned loose when caught with recently stolen property, because they have said to some of their pals or others, perhaps, that they didn’t own the horse, it would not be much use to attempt to convict that class of criminals in our courts.
In the opinion of the majority it is held that the admission of the bill of sale signed by Edmiston, and admitted as an exemplar, was reversible error. I do not so consider it. The man who saw Edmiston write that bill of sale appeared on the stand and testified that he saw him write it and sign it. There was no contradiction of that testimony. It is stated in note 2, page 270, 15 American and English Encyclopedia of Law, as follows: “The danger of raising collateral issue is slight when the proof of the standard is clear.” In the case at bar the proof of the standard was clear. There was no collateral issue raised as to that fact or over the said bill of sale. That being true, said exemplar was properly admitted under the exception to the general rule as laid down in the majority opinion. The judgment should be affirmed.