dissenting.
I was initially tempted to merely cite the dissenting opinion in State v. Erwin, 98 Idaho 736, 572 P.2d 170 (1977). However, my sense of outrage at the majority’s nonobjective view of the record has overcome my inertia. Likewise, I am disturbed at the majority’s failure to even consider State v. Cysewski, 101 Idaho 353, 612 P.2d 1200 (1980), a case heavily relied upon by the State, which is very similar in the facts and law to the case at bar and Erwin.
Implicit in the majority opinion is the thinly veiled belief that defendant-appellant Anderson was unjustly convicted. Perhaps that is founded on the belief that Owyhee County, where defendant lived and allegedly stole the horse, is primarily agricultural in nature with large numbers of cattle, sheep, horses and mules, wherein horse stealing is unpopular, and regarded as a serious crime. Such may be the case. On the other hand, the record demonstrates that while indeed defendant-appellant Anderson was unpopular (whether because of his prior criminal record or otherwise), one of Idaho’s more experienced trial judges meticulously attempted to protect the rights of the defendant-appellant at trial. At the first trial setting, the defense was allowed a large number of challenges to jurors to the extent that the entire venire was exhausted. After a further venire was summoned, the trial judge promptly granted a defense motion for mistrial on the basis that some of that new venire may have heard statements made by bystanders outside the court room. Thereafter the trial court ordered a change of venue to Canyon County. Although defendant-appellant Anderson had a previous felony conviction record, the trial judge granted a defense motion in limine to prohibit the prosecution from mentioning such criminal record in its cross-examination of Anderson. In its instructions to the jury, the trial court gave what, in my opinion, were instructions highly favorable to the defendant.
There is absolutely no question but that defendant-appellant Anderson sold a certain bay mare. The only question is whether he did so under the mistaken belief that the animal belonged to him.
The evidence of the prosecution indicated clearly that the animal belonged to one Quintana, who owned land adjacent to that of Anderson. Both Quintana and his employee testified that the animal in question had been owned by Quintana for four or five years and had been continuously worked by Quintana’s employees as a work horse drawing wagons in connection with Quintana’s sheep business. The horse had been noted continuously on Quintana’s land throughout the summer in question and up until approximately November 1st, at which *471time it disappeared. During that period of time the bay mare grazed with and was followed by a band of Quintana’s mules. After the animal disappeared the mules were noted on Anderson’s land and Quintana went to investigate. He found the mules on Anderson’s land, but did not find his bay mare. He conversed with Anderson and was offered another animal which was also a bay mare, but which had substantial white markings thereon, including rear white stockings and a blazed face. Quintana was emphatic in his testimony that his bay mare had not a spot of white on it. Highly significant in that conversation was the lack of any indication by Anderson that he had sold a bay mare only a few days prior.
Later Quintana was advised that his animal might be at the sales yard and lo and behold, when he arrived at the yard, he found his animal and was told that it had been sold by Anderson. The above facts were essentially the case of the prosecution. At the close of the prosecution’s case, the defense moved for a directed verdict of acquittal, which motion was denied by the trial judge.
Thereafter the defendant Anderson and his wife testified on behalf of the defense. Their testimony indeed indicated that Anderson had bought an animal during the month of May. In my judgment, the documents indicating that sale are conclusive as to what type of animal was purchased for transport to Anderson’s home in Owyhee County. Although Anderson was absent from his home during most of that summer, he did return for an attempt at breeding of a mare. The breeding charts maintained by his wife would indicate the horse that was the subject of the breeding attempt was a bay and white mare. What is highly significant is the testimony of Mrs. Anderson that during the entire summer she cared for and fed the animal which Anderson later sold. That testimony is, of course, in stark contrast and contradiction to the evidence of the State that that same animal was not on the Anderson ranch, but was rather known to be on the Quintana ranch until approximately November 1.
The majority opinion sets forth one view of the evidence, i. e., “Appellant and his wife fed this mare [exhibit 1, the animal sold by Anderson and the subject of the larceny charge] and treated it as their own, believing it to be their own, over the course of the summer. They had the animal bred during the season and decided to sell it only upon concluding she was barren. * * * Consistent with his belief, appellant sold exhibit 1 as his own.” Contrary to that testimony, as before noted, is the evidence of the prosecution that the animal was on the Quintana place.
A contrary view of the evidence and the inferences which might be drawn therefrom would be that Anderson did indeed buy an animal and deliver it to his ranch, feed, care for and attempt to breed that animal during the summer months. That during the summer months large numbers of Quintana’s stock came upon the Anderson ranch and disrupted its operation, including mules killing some of Anderson’s dairy goats and attempting to breed with Anderson’s brood mares. That in early November when Quintana’s mare, accompanied by mules, again invaded Anderson’s ranch, he took the mare who was obviously the leader of the mules and sold it. When Anderson was arrested he and his wife fabricated the story of the mistake as to their ownership of the animal that was sold.
I make no judgment as to which version of the circumstances is correct. I believe that judgment was one to be made by the jury. I do not believe the jury was required to accept the defendant’s version of the facts if other evidence, both testimonial and circumstantial, gave rise to legitimate inferences contradicting the defense version of the facts. Here I believe the prosecution’s evidence, with the legitimate inferences to be drawn therefrom, directly contradicted the defense case and that the resolution of that conflict was for the jury.
*472This case then is not unlike State v. Cysewski, supra. There a number of cattle belonging to a neighbor Best had continually strayed onto Cysewski’s land. He had continually contacted Best in an effort to alleviate the situation, but Best denied ownership of the cattle. Cysewski then brought an action in small claims court against Best by reason of the cattle straying onto the Cysewski land. Best successfully defended that action on the basis that the cattle did not belong to Best. In desperation, Cysewski finally took the cattle to a Spokane sales yard and sold them. Thereafter he was charged with the grand larceny of cattle belonging to Best. Following jury trial, he was convicted and upon appeal he contended that there was insufficient evidence upon which to base the verdict. This Court affirmed the conviction, pointing out that regardless of Cysewski’s version of the facts, “there was significant disagreement between the State’s and the defendant’s accounts of the events leading up to the sale of the cattle.” The Court there concluded, “It is not the function of this Court to weigh such evidence nor to place ourselves in the jury’s position.”
Although the Cysewski court distinguished Erwin, I suggest it is impossible to distinguish the instant case from Cysewski. One or more of those three decisions is erroneous.
I point out lastly that included in this trial court’s instructions to the jury were the following:
“If you find that the evidence in this case is susceptible of two constructions or interpretations, each of which appear to you to be reasonable and one of which points to the guilt of a defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit a defendant’s innocence, and reject that which points to his guilt.”
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“Where an act of the defendant may be attributed to two motives, one criminal and the other innocent, the law ascribes it to that which is innocent. This presumption continues, and the burden of proving that the criminal motive is the true one rests upon the prosecution.”
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“An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime.”
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“To constitute the crime of larceny, the intent must have existed in the mind of the defendant at the time of the taking to permanently deprive the owner of his property.”
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“You are instructed that in the crime of grand larceny of which the defendant is accused by the Information, the State must prove, beyond a reasonable doubt, that the property set forth in the Information was wilfully, knowingly, intentionally, unlawfully, and feloniously taken, stolen, and carried away by the defendant and that the property so taken, stolen and carried away by the said defendant was one of the animals described in instruction number ten.”
“It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in the case warrant any inference which the law permits the jury to draw from possession of recently-stolen property. If any possession the accused may have had of recently-stolen property is consistent with innocence, the jury should acquit the accused. The above instruction concerning the possession of recently-stolen property is limited by the rule that to warrant an inference of guilt it must be shown that the possession is personal and it involves a distinct and conscious possession by the accused.”
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*473“If you believe that the defendant took the mare involved in this action, under fair color of claim or title, honestly believing that he was its owner and had a right to its possession or a right to take it, even though he was mistaken in such belief, then you must acquit him.”
“If you can reconcile the evidence before you upon any reasonable hypothesis consistent with the defendant’s innocence, you must do so, and in that case, find the defendant not guilty. You cannot find the defendant guilty unless, from all the evidence, you believe him guilty beyond a reasonable doubt.” ******
“You are instructed that before you can find a defendant guilty of the crime charged, based solely on circumstantial evidence, you must find beyond a reasonable doubt that the circumstances are consistent with guilt of the defendant, and inconsistent with his innocence, and incapable of explanation or any other reasonable hypothesis than that of guilt.”
Following such instructions, the jury returned a unanimous verdict of guilt. I would affirm that verdict.
DONALDSON, J., concurs.