Appellant was accused of having wilfully and' unlawfully permitted and suffered to- be herded, grazed and pastured about 4,000 sheep controlled by him and in his charge on a cattle range, described in the complaint as sections 14, 15, 22 and 23, in township 1 north, range 21 *66east, Boise Meridian, in violation of C. S., see. 8333. He was found guilty as charged and a judgment of conviction was entered, from which he has appealed to this court.
Among the assignments of error is the insufficiency of the evidence to support the verdict in that it was not shown the sheep appellant was alleged to have had in his charge and under his control were ever on the land referred to in the complaint as a cattle range. An examination of the record discloses an absolute failure of proof in that particular. It is shown the sheep were in the vicinity of the land described, and the testimony of the prosecuting witness on this point, which appears to be the only attempt made by the state to establish exactly where they were, is as follows: “Q. Where were these sheep now with reference to the land you have described in the complaint? A. There was one band on the east side of it and one on the west, camped right close to the land.” •
The judgment appealed from is reversed and the cause is remanded to the district court with instructions to grant a new trial.
Bice and Budge, JJ., concur.