dissenting.
I cannot concur with my brothers in the reversal of this case. I assume the people’s evidence to be true, which supports the conviction. It overwhelmingly shows the defendant’s guilt, and I see no prejudicial error in the instructions.
The court told the jury: Defendant is presumed to be innocent of the crime charged,'which presumption abides . with him throughout the trial and the burden is upon the people to establish his guilt from the evidence beyond a reasonable doubt; that when one takes possession of the property of another on good faith, honestly believing that the property taken belongs to him, he is not guilty of stealing it; that if the jury find and believe beyond a reasonable doubt that defendant did' feloniously steal, take and drive away three head of neat cattle, the property of Lee, with intent to steal the same and deprive the owner of the immediate possession thereof, then they should find defendant guilty, notwithstanding the fact that he after-wards returned the property to the owner.
Defendant claimed the cattle were his, and complaint is made of the latter instruction, because, it is said, it tells the jury that Lee was the owner of the property. I do not think it is susceptible of that construction, or that the jury could have so understood it. It tells them that if they find the animals were the property of Lee, and that defendant took and stole them with intent to deprive the owner of their immediate possession, then the fact that he afterward returned them to the owner made no difference.
As to the other instruction, the court told the jury that defendant was presumed to be innocent and that the burden was upon the people to prove his guilt beyond a reasonable doubt, and if they entertained any reasonable doubt of his guilt, they should acquit. We have held in, numerous cases there was no need of repeating this in other instructions — giving it once, was enough. When the court told the jury, if a person takes possession of another’s *110property in good faith, honestly believing that it belongs to him, he is not guilty of stealing it, the instruction regarding reasonable doubt and burden of proof was necessarily read into and became a part of the instruction without repetition. The instructions are to be taken as a whole. The gist of the offense is taking the property of another with the intent at the time of stealing it. There could exist no such intent if the party honestly believed when he took it, that it was his. So the jury in this case must necessarily have understood that if they entertained any reasonable doubt regarding defendant’s intent to steal the cattle when he took and branded them, that they should give him the benefit of the doubt and acquit.
The instructions are clear and comprehensive, and there is nothing in them by which the jury could have been misled into believing that the court intended to tell them that the cattle belonged to Lee, or that they were not to give defendant the benefit of any reasonable doubt they might entertain as to his intent to steal them when he took the animals.
I am authorized to state that Mr. Justice White and Mr. Justice Bailey concur in these views.