charging the jury:
Jacob White, the accused, is charged in the indictment, upon which he is being tried, with the larceny of a mare, on the night of January 7, A. D. 1915, in this county, it being alleged that the mare was the property of James H. Outten, the prosecuting witness.
[1] Larceny is the taking and carrying away the personal goods and chattels of another with the felonious intent of him, the taker, to convert the property to his use without the consent of the owner.
Larceny consists of three main essential elements, namely, the taking and carrying away personal property which is the severance thereof from the possession of the owner against his will; the taking of property of some value from a person with a legal right to the possession thereof; the intent to steal, 'which embraces the intent to permanently deprive the owner of the possession of the property stolen, and the intent of the taker of the property to derive some gain or profit thereby.
[2] As we have shown, one of the elements of the crime of larceny is the taking and carrying away of the alleged stolen property by the accused. This may be proved by direct evidence or by a 'proper amount of circumstantial evidence. In this case the state has shown the asportation by someone of the property mentioned in the indictment. The state has not attempted to *91show by direct evidence—that is by eye witnesses—that the accused committed the crime charged, but relies wholly upon circumstantial evidence, that is, upon a chain of circumstances which it is claimed establishes the guilt of the accused.
Circumstantial evidence, like direct evidence, 'when it establishes the guilt of the accused, may be relied upon for a conviction. Whenever circumstantial evidence is relied upon, it must be of such a character and strong enough to exclude any reasonable inference or conclusion other than that the accused is guilty of the crime charged. It must be such as (1) to enable the jury to find the crime proved beyond a reasonable doubt; (2) that the circumstances proven are in all respects consistent with the theory of the guilt of the accused; and (3) that such circumstances are inconsistent with any other reasonable theory than the guilt of the accused. # ?;$ * * * *
In order to warrant a conviction there must be clear proof that the crime charged was committed by the accused.
If upon all the evidence introduced by the state, and by the accused, there results a reasonable doubt in your minds upon any essential element of the crime charged, the accused is entitled to an acquittal. If on the other hand, the evidence satisfies you of the guilt of the accused, beyond a reasonable doubt, your verdict should be guilty.
Verdict, not guilty.