Concurring in Part and Dissenting in Part. As to all points covered in the majority opinion and not hereinafter dissented from, I concur.
From the record it appears that on the 9th of October, 1916, appellant and one Elam went to a field located on or near a stream known as Jenkins Creek and drove therefrom a cow alleged to belong to 'Williams. and Groom, partners. They took the cow to appellant’s ranch and kept her there until the 11th of October, 1916, at which time she was *213killed by Grimmett in the presence of Elam and one Faust. Elam testified that the brand on the cow, a figure “4,” was disfigured by appellant with a hot iron. Faust did not see Grimmett apply the hot iron to the brand, but when he got into a position where he could see the animal the hide was still smoking. Thereupon Grimmett, Elam and Faust removed the hide and cut up the carcass. The next day Elam and Faust, at Grimmett’s request, took the hide and three-quarters of the animal to Weiser, placed the same in cold storage and sold the hide to one Hetrick, who, at Faust’s request, wrote his check payable to Grimmett for the amount that he paid for the hide. The hide was identified by the owners of the animal and other witnesses as the one taken from the cow owned by Williams and Groom, which Elam had testified was driven by Grimmett and himself from the Jenkins Creek field.
Faust testified that the cow was branded with the figure “4” on the left hip; on the evening of October 11th, at Grimmett’s request he helped butcher her; he and Elam took three-quarters of the meat to town, put it in cold storage, and sold the hide to Hetrick.
Grimmett’s testimony upon examination was of a very unsatisfactory character.
I am unable to concur with the conclusion reached in the majority opinion that the instruction given on the court’s own motion is substantially as requested by the state, nor with the holding that it is deemed excepted to within the meaning of C. S., see. 9012. The rule is that instructions given on the court’s own motion are not deemed excepted to, but as to them, exceptions must be expressly saved in the record. (People v. Walter, 1 Ida. 386; People v. Biles, 2 Ida. 114, 6 Pac. 120; People v, O’Callaghan, 2 Ida. 156, 9 Pac. 414; State v. Suttles, 13 Ida. 88, 88 Pac. 238; State v. Peck, 14 Ida. 712, 95 Pac. 515; People v. Hart, 44 Cal. 598.) The instruction which the state requested was refused, and the only party who can complain as to it is the state. The instruction was not given, and appellant took no exception to the instruction which was given. If the *214rule is a harsh one, the remedy lies with the legislature and not with this court.
The majority opinion holds that G. S., sec. 1948, in the language of which the court’s instruction on its own motion was given, is unconstitutional, apparently on the ground that the evidence which it seeks to make prima facie proof of larceny, is not material and relevant, and further on the ground that ■
“Under this statute one could be convicted without any evidence that any cattle of any description had been stolen from any person. The instruction, if followed by the jury, relieved the state from the necessity of offering any evidence whatever of the corpus delicti.”
To my mind no such interpretation of the statute is possible. The statute does not say that the failure to retain the hide for thirty days after butchering an animal shall constitute grand larceny. It leaves the crime of grand larceny precisely as heretofore defined by our statutes, and it simply makes this fact prima fade evidence that the one so failing to retain the hide is guilty of grand larceny as to the cattle so slaughtered or killed.
In other words, where the state has properly charged the defendant with the crime of grand larceny and by competent evidence established the fact that an animal has been stolen, that the hide from the animal has been traced to the possession of the defendant, that the defendant has failed to retain the hide in his possession for a period of thirty days after the animal proven to have-Jbeen stolen was slaughtered, the failure of the defendant to so retain the hide in his posses-' sion is prima facie evidence of the commission by the de-' fendant of the crime of grand larceny, and shifts upon him the burden of evidence to explain the possession. The statute does not deprive the defendant of any constitutional right. He is only required, the facts being peculiarly within his own knowledge, to explain the possession of the hide taken from the animal proved to have been stolen. It is unnecessary to interpret the statute to mean that the failure to retain a hide for thirty days would be sufficient evidence upon
*215which to support a conviction, of grand larceny in the absence of proof of the actual theft of the animal from which the hide was taken.
It is the imperative duty of this court to adopt the well-known rule of construction that if a statute is upon one construction in conflict with the constitution and upon another is not, the latter construction, if a fairly possible one, should be adopted, even though it seems the less natura] meaning of the terms employed. (In re Sing Lee, 54 Fed 334, 337.)
Moreover, as was held in the case of Hindman v. Oregon Short Line R. R. Co., 32 Ida. 133, 178 Pac. 837, it is an elementary principle of statutory construction that where a statute is capable of two interpretations, the one constitutional and the other unconstitutional, the court should adopt the construction which would uphold the validity of the act, for the reason that it is not to be presumed that the legislature was attempting to enact an unconstitutional law, but, on the other hand, the presumption should always obtain that the legislature was seeking to enact a law which would be constitutional, valid and enforceable.
The statute involved was passed expressly for the purpose of prohibiting the destruction of evidence of the theft of cattle, and can in no way be so construed as to result in injury to the rightful owners of animals slaughtered. The applicability of the statute involved can under no circumstances arise in the absence of a theft of cattle and proof of such theft.
This statute in nowise relieves the state of the burden which rests upon it to state in the information or indictment every essential element necessary to constitute the crime of grand larceny in order to state an offense under the laws of this state. Grand larceny is, and can be Committed only, of property that belongs to someone. In order to establish either by pleading or proof the crime of grand larceny, it must appear that the property belonged to some particular person; that it was taken from him without his consent and against his will, and with a felonious intent to steal it *216and deprive the owner permanently of its nse. The instructions of the court fairly and fully cover this point, and when read in connection with the other instructions given, the instruction Complained of is neither misleading nor an incorrect statement of the law. It is elementary that no one instruction states all the law of the case, but that all of the instructions must be considered together, and when taken as a whole they state the law by which the jury is to be governed in its application to the facts of the ease, and the court so instructed the jury. The Court gave the following instruction: ■>
“The material allegations of the information are: That the defendant took the animal described, in the information with the felonious intent to deprive the owner of said animal; that is, the taking must have been wrongful, and without right and without excuse, and with the intent of permanently depriving the owner of his property.
“2. That at the time of such taking said animal was the property of S. K. Williams and Willis Groom.
“3. That said property was taken in Washington county, state of Idaho, at or about the time set forth in the information. ” -
The statute in question does not even purport, from any rational interpretation that can be made of it, to change or alter the material facts which constitute the crime of grand larceny. The corpus delicti must be proved, and while the identification of the hide in a particular ease might be necessary in order to establish the identity of the animal owned by someone from whom it had been stolen, the fact that it had not been kept for thirty days as required by this statute does not establish the crime of grand larceny, but merely establishes a prima, facie ease that the person who butchered the animal and destroyed the hide was guilty of the crime of grand larceny otherwise established by the evidence. It does not deprive a defendant of any Constitutional right to prevent him from destroying the evidence of crime. An attempt to destroy the evidence of a crime which has been actually committed is some evidence that the one so destroy*217ing it was connected with, the commission' of the crime, and would be and is relevant and material upon this point independent of the existence of this statute. The statute does no more than to prescribe what weight shall be given to such evidence.
Viewed in this light, the statute in question does no violence to any constitutional right of the defendant, and is well within the constitutional authority to pass laws and prescribe rules .of evidence vested in the legislature. (State v. Adams, 22 Ida. 485, 126 Pac. 401; In re Sing Lee, supra; Logan and Bryan v. Postal Tel. & Cable Co., 157 Fed. 570; Ng Choy Fong v. United States, 245 Fed. 305, 157 C. C. A. 497; State v. Beach, 147 Ind. 74, 46 N. E. 145, 36 L. R. A. 179; Griffin v. State, 142 Ga. 636, Ann. Cas. 1916C, 80, 83 S. E. 540, L. R. A. 1915C, 716, and note; People v. Johnson, 288 Ill. 442, 123 N. E. 543, 4 A. L. R. 1535, and note; State v. Cunningham, 25 Conn. 195; Faith v. State, 32 Tex. 373; Robertson v. People, 20 Colo. 279, 38 Pac. 326; Baltimore & O. S. W. R. R. Co. v. Tripp, 175 Ill. 251, 51 N. E. 833; Commonwealth v. Minor, 88 Ky. 422, 11 S. W. 472; Learned & Koontz v. Texas & P. Ry. Co., 128 La. 430, 54 So. 931; Ex parte Woodward, 181 Ala. 97, 61 So. 295; Dees v. State, 16 Ala. App. 97, 75 So. 645; 6 R. C. L. 465, see. 461; Caffee v. State, 11 Old. Cr. 485, 148 Pac. 680.)
There is no such thing as larceny until some particular property owned by some particular individual has been feloniously taken from him, and this statute does not seek to alter that situation. To my mind there is no reasonable justification for the statement above quoted from the majority opinion that one could be convicted without any evidence that any cattle of any description had been stolen from any person, nor that the instruction, if followed, would relieve the state from the burden of proving the corpus delicti.
Nor am I in accord with the statement in the majority opinion that “the jury could have found that Faust was an accomplice, and yet, relying upon and being misdirected by the instruction complained of, could have found appellant guilty.” No such situation could result, because the eourt *218instructed the jury they could not convict upon the uncorroborated testimony of an accomplice, and that the testimony of one accomplice could not be treated as corroborative of another accomplice to the extent of satisfying the requirements of the statute. To my mind the verdict of guilty is conclusive proof that the jury found Faust was not an accomplice, because if the jury had found Faust was an accomplice, there would have been no occasion for an application of the instruction complained of, for in that event there would have been no corroboration of the theft by appellant or the disfiguring of the brand or possession or disposal of the hide.
(November 17, 1920.)There is sufficient evidence in the record to prove the corpus delicti independent of the testimony of Elam or Faust. The evidence shows that Williams and Groom owned the cow; they never disposed of her, nor authorized anyone to dispose of her, and it shows the hide which was introduced as an exhibit came off this cow, which is sufficient to show she was stolen and butchered by somebody without any lawful authority, and establishes the corpus (delicti. In my opinion, the judgment should be affirmed.