Dissenting. — It is difficult to understand how a jury, uninfluenced by anything other than the evidence that appears in this record, could have returned a verdict of conviction. But conceding the sufficiency of the evidence to justify the verdict, the defendant on his motion for a new trial has produced affidavits of witnesses that it is clearly shown he knew nothing of prior to the trial, which affidavits show facts most material to his defense. The theory of the state all the way through the case appears to have been that the defendant never, in fact, owned the two animals he claimed to have lost, and that he claims to have taken up and branded. The affidavits on motion for a new trial show quite conelusively that the defendant did have two such animals, and that the resemblance was so marked that some of the witnesses were unable to distinguish between them. This was shown by as many as five witnesses. One witness, Thomas Hines, testified to having told the prosecutor that he would testify to these facts soon after defendant’s arrest, and he went with the prosecutor to see the animals and called his attention to the marked resemblance; but defendant does not appear to have been apprised of this until after the trial, when he sent his attorney to Chehalis, Washington, to interview the witness. Evaline Wilde, a child of eleven years old, makes affidavit that during the fall of 1904 these colts got into her father’s field, and that she drove them out, and the brown colt cut its leg on the barbed wire. This was a most material fact, as the defendant had identified the animal by this wire cut. It is also strange that the prosecuting witnesses themselves had never noticed this wire cut on the animal until the defense called their attention to it. It shows how easily witnesses can be mistaken in their identification of growing range animals. With this showing it seems to me that a new trial ought *492to be ordered; it would enable the defendant to present all his evidence, and, if innocent, vindicate himself; and, on the other hand, the state in this particular case could suffer no possible prejudice by a new trial if the defendant is in fact guilty, as his guilt could as easily be shown on another trial.