(dissenting.) I regret that I am unable to agree to the judgment announced by the court, but a consideration of the case has convinced me that the learned circuit judge committed an error in instructing the jury, and that a new trial should be granted.
There was, as is stated in the opinion of the court, evidence tending to show that the defendant was seen leading the horse alleged to have been stolen away from its range, where it was accustomed to stay, and to show that the defendant had taken actual possession of the horse. But, on the other hand, there was evidence contradicting this evidence, and tending to show that the horse was an estray, running at large near a farm owned by a brother of defendant; that the horse jumped into the field which Hall, a tenant of defendant’s brother, was cultivating, and that Hall put him up and worked him, but that defendant never had possession of the horse, or exercised any act of ownership over him. Defendant testified further in his own behalf that he had never at anjr time either had possession of the horse or claimed to be owner of him. Under this evidence, the jury could have found that defendant claimed to be the owner of this stray horse, and had offered to sell or trade him, but had never taken possession of him, or had actual control of him in any way. It was possible that the j ury might come to this conclusion on the facts. The law as to their duty in that event should have been made plain to them. But this is where I think the charge to the jury was defective and misleading. After giving correct definitions of the crime of larceny, and correctly instructing the jury on the law of larceny in a general way, the court comes in the sixth instruction to deal with the law as applied to the peculiar facts of this case, and says: “If the jury believe that the horse in question was running at large, and regarded as an estray in the neighborhood, and they further find from the evidence beyond a reasonable doubt that defendant took possession of said horse, or exercised such ownership over the same, with intent to steal, they will find defendant guilty.” In other words, the judge, as I understand this instruction, told the jury that if the defendant took possession of the horse with intent to steal him, or exercised such ownership over him as owners of live stock usually exercise over the same, with intent to steal, they should find him guilty. There is nothing to show what was meant by the words “exercised such ownership over him as owners of live stock exercise over the same.” The jury were left free to put such interpretation on the words as they chose to do, and to convict the defendant if in their opinion he had exercised such ownership over the horse as owners of live stock usually exercise over them.
Now, it is well known that there are considerable sections of this state in which the lands are wild and uninclosed, and where owners of live stock frequently allow them to run at large on the range with little, control over them. They are sometimes bought and sold on the range, without any actual possession or delivery of the animals. And, as far as we know, this jury may have concluded that the mere claim of ownership, or an offer to sell the horse on the part of the defendant, without any taking of possession, was sufficient to bring him within the scope of this instruction, and to justify a conviction. For this reason it seems to me that this instruction was not only wrong, but under the facts of this case it was likely to be prejudicial to the defendant.
After this instruction was given, counsel for defendant, in order to prevent the jury from being misled by it, asked the court to tell the jury explicitly that a claim of ownership, without a taking of the horse by the defendant, was not sufficient to convict. These instructions asked by the defendant are set out in the statement of facts made by the court, and it is unnecessary to repeat them here. It seems to me very plain that, having given the instructions above referred to, one or more of those asked by the defendant should have been given, to make plain to the jury that a mere claim of ownership or an offer to sell the horse by him was not sufficient to convict when no caption or asportation was proved. But the court refused all of these instructions, and no one can say from the evidence and instructions whether the jury found a taking of the horse as alleged in the indictment or not.
In referring to this point, the court, in its opinion, says that no one can infer an attempt to steal from a mere claim of ownership, and that a man who would find another guilty of larceny on such evidence would be unworthy to sit on the jury. That may be true, but men ignorant of the law often sit on the jury. It is for this reason that judges are required to instruct the jury as to the law applicable to the facts of the case. That the law is plain is no excuse for refusing to give it when asked. The instruction asked in this case in my opinion clearly stated the law, and should have been given, and the refusal to do so, 1 think, was prejudicial error, for which the judgment should be reversed.
Wood, J., concurs in the dissenting opinion.