Cope, J. concurring.
We think the learned Judge below instructed the jury too strongly in favor of the plaintiff. We have examined the evidence, and without expressing any opinion as to the weight to be attached to the proofs in connection with the charges of hog stealing, we think the Court should not have told the jury that the evidence constituted no defense to the action. The testimony of the witness Dougherty, *709taken in connection with some of the other proof, might, if believed by the jury, to say the least, place the plaintiff’s case and conduct in a very unfavorable light. The fact that the hogs were the defendant’s, and that so many of them were marked with the plaintiff’s mark; that the hogs were known to the plaintiff; that the parties lived within a half a mile: the testimony of Hancock that the same change was made in the mark of one of his calves; the proof as to the stray mare by the witness Haskins—all these things, taken in connection with proof of the alleged bad character of the defendant, if believed by the jury who were the proper judges of the weight of this testimony, might have been considered by them as placing the plaintiff’s claim for recovery in a very different light from that in which they probably considered it after receiving the charge of the Judge. We do not think the Judge was correct in charging that the marking of the hogs, if done by the plaintiff, was no proof of asportation; for if the hogs were taken possession of by the plaintiff unlawfully, with the intent to mark them in his own mark, and he did so mark them in order to claim and use them as his own, knowing them to belong to defendant, this would seem to make the offense of larceny complete. Whether he did this it was for the jury to determine from the facts before them. But these facts certainly go, if believed, to show a different case from that of a wanton assault upon the character of a man free from all suspicion of impropriety in relation to his neighbor’s property.
Judgment reversed and cause remanded.