ON PETITION FOR REHEARING
Potter, Chief Justice.The judgment of the district court upon a verdict finding plaintiff in error, defendant below, guilty of larceny of certain neat cattle having been affirmed by this court (see 201 Pac. 154), she has filed a petition for rehearing, stating as grounds therefor that the conclusions of this court are erroneous in the following particulars :
(1). In holding the evidence sufficient to sustain the verdict. (2). In sustaining the rulings of the trial court admitting the testimony relating to the discovery upon the range of other cattle upon which the brand of Davidson Bros, had been altered in the same manner as the brands upon the Davidson cattle alleged to have been stolen, and that the defendant claimed them as her cattle. (3). In refusing to review the instructions complained of, for want of proper exceptions, particularly instructions numbered 8%, 9, and 9%.
The ease was ably presented at the original hearing, both by brief and oral argument, and all the points now insisted upon in support of the grounds assigned for a rehearing were then urged as grounds for reversal. . And they were considered by the court and discussed as fully as deemed necessary in the former opinion. We have, however, carefully considered the petition and the brief filed in its support, but are not convinced that .a rehearing might result in a change of our views upon any of the questions presented, or the conclusion that the judgment should be affirmed.
*138Tbe point upon which it is again contended that the verdict is not sustained by sufficient evidencé is that there is no evidence of a taking of the cattle within the meaning of the larceny statute, for the reason, as counsel contend, that it appears from the evidence that the cattle went upon the lands of the defendant from the open range, whereby she obtained possession of them innocently, so that upon the principle that there must be an intent to steal at the time of the taking, in order to constitute the crime of larceny, the crime was not established by the evidence in the ease. But, as intended to be and as we think was shown in the former opinion, there is nothing in the case rendering the principle relied on applicable.
While it appears from the evidence that cattle of various owners-upon the open range in the vicinity of the defendant’s ranch would occassionally, or perhaps habitually, drift or stray upon certain lands belonging to that ranch, in search of water which was accessible there, it does not appear that any of the cattle alleged and found to have been stolen, or any cattle of other owners, came into the possession of the defendant in that manner, even if it might be possible, under the law, that she could have obtained possession of such cattle lawfully or innocently, by reason of the fact that they had strayed upon such lands; a point which, as stated in the former opinion, we are not willing to concede, though it is a question whieh it was and is not necessary to decide in this case. And it may be said in addition to the facts stated in the former opinion in discussing the question that instead of claiming that she had innocently acquired possession of’ the cattle in question she expressly denied in her testimony that she had ever shipped or had ever seen the cattle from which the eight hides produced by the prosecution had been taken, and which were the cattle claimed to have been stolen, but that the cattle shipped by her at the time in question were her own, that she had, handled them since they were calves, and rode among them every day. And she also testified that the 32 head so shipped by her were all her cattle, and that there *139were no Davidson cattle or cattle of any other owner named in the information in her said shipment.
With reference to the second ground of the petition, challenging the correctness of our conclusion as to the admissibility of the testimony concerning other Davidson cattle, showing a similar change of brands discovered on the range in the vicinity of the station from which it was claimed by the prosecution the cattle alleged to have been stolen had been shipped by the defendant, and soon after that shipment, we think our reasons for holding the testimony to have been properly admitted were-sufficiently stated in the former opinion and we remain of- the opinion that the point was correctly decided. But it seems to be contended in the present brief that the fact that the defendant had brought a suit in replevin for the possession of such other cattle, after the discovery of them upon the range by the witness Davidson and-his taking possession of them, rendered the testimony inadmissible for the reason that the ownership of said cattle was thereby shown to be in dispute in a civil action pending in the district court at the time of the trial of this case. The fact that such replevin suit had been brought was not mentioned in the former opinion for the reason that it was not deemed material since it was stated that the defendant claimed such cattle as her own; and it is not now perceived that the fact that the defendant had brought such replevin suit, which was first testified to by the witness Davidson in connection with his statement that the defendant claimed' the cattle as her own, could operate in any way to render the testimony objected to inadmissible. Whether she replevied them or not, the fact that she claimed to own them would present the fact of a dispute as to the ownership, but clearly, we think, that would not destroy the admissibility of the testimony. Without the fact that the defendant claimed the other alleged mis-branded cattle the evidence would not have been admissible, for the cattle- were not shown to have been found in her immediate personal possession, but at large upon the range.
*140• The fact is, as shown by the record, that this testimony was offered for the purpose of showing that other cattle bearing the Davidson Brothers brand,' changed in the same manner as the brand upon the alleged stolen cattle, were claimed by the defendant as her own cattle. It appears that the witness Davidson was asked whether or not on or about July 25, 1919 (the date of the.defendant’s shipment, which it was claimed included the cattle alleged to have been stolen) he discovered any cattle on the range in the vicinity of Fossil (the station from which said shipment was made) with the D Bar D brand thereon (the Davidson brand) altered, as he had found it altered on the alleged stolen cattle. The question was objected to generally as incompetent and irrelevant and for the further reason that it was an attempt to connect the defendant with a distinct and separate offense. Thereupon the prosecution offered to prove that the defendant claimed the ownership of at least one head of cattle found within a day or two after said shipment with the Davidson brand altered similar to the alteration found on the hides of the alleged stolen cattle.
The offer being objected to as an undertaking to prove a separate offense, the attorney for the state then said: It is offered as a circumstance to show that the defendant claims to be the owner of cattle where the said Davidson brand had been changed. The objection being overruled the witness answered: “Yes, sir, I did,” and he further said that he had found four head out there on the range with D Bar D changed; that they were left in “our charge” at the ranch by the sheriff; and that the defendant had claimed these cattle as her own, -and had replevined them. It further appeared that the Davidsons, upon giving a redelivery bond in the replevin action, had retained possession of .the cattle.
It is argued in this connection that the question of the title to the cattle being in dispute and litigation between the Davidsons and the defendant, the ownership could not be determined on the trial of this ease. Conceding that to be true, it does- not destroy the relevancy of the testimony- to *141show that other cattle claimed by. the‘defendant as her own had been found at or about the time of the shipment of the cattle claimed to have been stolen, which showed the samé change of the 'Davidson brand as that shown upon the alleged stolen cattle. The defendant,'as was her right, met that evidence by testifying that the new brands upon those other cattle were placed over old brands of her own, and not over á Davidson brand, and in this she was corroborated by another witness, who identified the cattle, after having seen them at the Davidson ranch, by describing them other than by the brands, as cattle belonging to the defendant which he had eared for the winter before, and that the Davidson brand was not upon said cattle, but that they bore at that time a brand which was being used by the defendant, over which the new brands appeared to have been placed. All the testimony on this question was .for the consideration of the jury, together with the other evidence in the case, in determining whether the defendant was or was not guilty of the crime charged in this case.
It is to be remembered that the theory of the prosecution and the effect of its evidence was that' the Davidson cattle alleged to have been stolen by the defendant were shipped by her from Fossil, in this state, to South Omaha, Nebraska, after the Davidson brand upon each head of said cattle had been recently changed, and the material point was whether such cattle had been misbranded and shipped by the defendant. And we see no good reason to doubt that it was relevant upon that theory of the case for the prosecution to show that other cattle of the same owner, claimed by the defendant as her cattle, had been discovered upon the range at or about the same time with the owner’s brand changed in the same manner.
It is argued that it is not shown that said other cattle were stolen. We are not convinced that the testimony of the witness Davidson as to the change of the brand upon said cattle, under the circumstances, might not properly be held sufficient to show, at least prima facie, that they had been stolen. In the former opinion, and for the pur*142pose of that decision-, we said that conceding that it was not sufficient to make out a prima facie case of larceny of said four head of- cattle, it was sufficient to prove the relevant fact sought to be established,-, viz., similar wrongful instances of misbranding by defendant at -about ■ the same time; having reference to the -stated purpose of the offer of the testimony as a circumstance to show that defendant claimed to be the owner of. other cattle upon which .the Davidson brand had been altered in the same maimer as the brands upon the cattle charged in this -case’to have been stolen. .It is argued also that the testimony.of the witness Davidson was vague and uncertain, and for that reason should have been excluded. -¥e do not think so. He had previously described particularly the manner in which the Davidson- D Bar D brand had been changed upon the cattle of that brand alleged to have been stolen, and his testimony admitted as to those other cattle was to the effect that the brands upon them had been changed in the same manner.
It seems to us that the greater part of the argument in the brief upon this question relates to the sufficiency of all the evidence, that for the defense as well as for the prosecution, as to these other four head of cattle to show that -they were misbranded D Bar D cattle,- or were cattle belonging to the Davidson Brothers. That was a question for the jury, and was no doubt argued to them upon the evidence, but it cannot affect the question of the admissibility of the testimony that was objected to. We doubt if it has evei; been held, at least no case has been cited to that effect and we have found none, that testimony otherwise admissible offered to show the finding of other recently stolen property in the possession of a defendant accused of larceny is rendered inadmissible by the fact that such defendant claims or had claimed at the time of the finding of such property in his possession or under his control that he owned the same.
A situation somewhat similar to that in the case at bar Was presented in the recent Texas case of Mueller v. State, 215 S. W. 93. That was a prosecution for larceny of cattle, and the other cattle in that case were found in the same *143field with the cattle alleged to have been stolen, and were identified as cattle previously stolen from the same owner. This evidence as to such other cattle was introduced in rebuttal of testimony on the part of defendant that the cattle charged to have been stolen and all the other cattle in the same field were owned in part by the defendant, and in part by the owner of the field, who was also charged with the theft. The appellate court held that the evidence was admissible, not only for the purpose of rebutting the evidence offered by the appellant, but also for the purpose of showing lack of innocent connection on the part of the appellant with the cattle charged to have been stolen- in.the case then before the court, and for the purpose also of showing his intent with respect thereto, or as developing the res gestae or as proving a legitimate chain of circumstances affecting the guilt of the appellant. And the defendant’s evidence in that ease was to the effect that all of the cattle in the field had been raised by the owner of the field, the other party charged with the theft and that some of them had been sold by him to appellant.
We think it proper further to say, with reference to the second ground of the petition, that counsel is mistaken in supposing that the case of Commonwealth v. Coyne, 228 Mass. 269, 117 N. E. 337, 3 A. L. R. 1209, was cited in our former opinion. It is stated in the brief in support of the petition that said case is cited in the court’s opinión, and it is then commented upon by counsel as not in point upon' the question. The case was not cited by this court, but we did cite “Note, 3 A. L. R. 1213,” which happens to be a note supplemental to a report of the case of Commonwealth v. Coyne. But the note only was cited, and it was cited because of the many eases referred to and considered therein upon the general subject; and that note is upon points expressly distinguished from the proposition upon which the decision in the said reported ease was based. Nor was it supposed that the cases which we cited upon the question were all that might be cited in support of the conclusion Stated, or that they were even the strongest cases affirming *144and applying the principle upon-which the question was decided. But the citation of individual cases were purposely confined to cases showing an application of the principle to facts similar-to those in the case at bar.
Under the third ground stated in the petition for rehearing, it is contended that the instructions complained of are so fundamentally erroneous as to vitiate the entire charge and to require a consideration thereof in the absence of any exception. And in this connection it is argued, first, that the general exception is substantially the same as the exception in Palmer v. State, 9 Wyo. 40, cited in our former opinion as holding that where the charge as a whole presents an erroneous view of the law as applicable to the case a general exception to the charge is sufficient. In that case the court said that the instructions for the state as a whole presented an erroneous view of the law as applied to the facts of the case. But in the cáse at bar we said that the charge as a whole did not present an erroneous view of the law as applied to the facts-. And we added to that that we were satisfied that the verdict was not the result of any erroneous statements in the instructions criticized by counsel.
In support of the proposition that without sufficient exception the alleged errors in the instructions should be considered, the rule stated in Parker v. State, 24 Wyo. 491, 161 Pac. 552, is relied on, viz: “However, if it clearly appears from the record that such fundamental and prejudicial error has been committed as to amount to a denial of substantial justice, or to deprive the defendant of a fair trial, the court should not hesitate to reverse the judgment and grant a new trial, although proper exceptions were not taken at the time. ’ ’ That was said in a capital case, and as the concluding part of a discussion of the attitude of appellate courts in such eases, showing that they have inclined to the view that in such cases it is their right and duty to examine the record to ascertain whether or not the defendant has been deprived of his constitutional right to a fair and impartial trial, but that the judgment should then be reversed *145only where it appears that such fundamental errors have been committed as to deprive defendant of his substantial rights, or that the ruling, decision or other matters complained of have been prejudicial to the defendant; and especially so where proper exceptions have not been timely taken or preserved. And in another capital ease decided at the same term, Ohama v. State, 24 Wyo. 513, 161 Pac. 558, this court, after holding, upon the facts in that case, that for the reasons stated in the Parker case the rule as to objections and exceptions should not be strictly enforced, said, concerning the necessity of proper exceptions generally to procure a review of alleged errors:
‘ ‘ The rule of practice is a salutary one in most cases and should not be departed from even in criminal cases except in a case like this, where deemed necessary to the security of defendant’s right to a fair trial or the just administration of the law.”
But if it should be conceded that the rule requiring proper exceptions might properly be departed from in this case under the conditions stated and considered in the Parker and Ohama cases, we are unable to agree with counsel in their contention that either of the instructions complained of was fundamentally erroneous or necessarily prejudicial, or announced an incorrect theory affecting the entire charge and the validity of the trial. The contention, while not confined to any one of the instructions complained of, is presented with special insistence as to the ninth instruction, and with reference to the concluding words of that instruction, viz: “You are not at liberty to disbelieve, as jurors, if you believe as men; your oath imposes on you no obligation to doubt where no doubt exists if no oath had been administered.” The entire instruction was as follows :
‘ ‘ The court further instructs the jury, as a matter of law, that the doubt which the juror is allowed to retain in his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any *146juror, in view of thé consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt' by resorting to trivial and fanciful suppositions, and remote conjectures as to possible state of facts, differing from that established by the evidence; you are-not at liberty to disbelieve, as jurors, if you believe as men; your oath imposes on you no obligation to doubt where no doubt exist if no oath had been administered. ’ ’
An instruction in the same words, except that in the last sentence the word “exist” was preceded by “would” was condemned by this court in Robinson v. State, 18 Wyo. 216, 106 Pac. 24, because of the omission from it in the first sentence of the clause now objected to of the words “from the evidence” immediately preceding the words “you believe as men.” If the words omitted had been included in said clause of the instruction, the first sentence thereof would read “you are not at liberty to disbelieve as jurors, if from the evidence you believe as men. ’ ’ The court said that the language of the instruction in the Spies case (Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 893, 3 Am. St. Rep. 374) was attempted to be followed, and further:
“Whatever force there might be in the adoption and approval of the instruction in the Spies case by eminent courts, it is not persuasive as upholding the instruction given in the case before us. Here one of the essential elements of that instruction is lacking, viz: that the belief in the guilt of the accused sufficient to convict must be based upon the evidence in the case. A lack of evidence to prove such guilt cannot be supplied by what a juror knows or believes, regardless of his oath. Under our procedure he is required to base his verdict solely upon the evidence and law as given him by the court. ’ ’ And the judgment in the Robinson case was reversed because of that instruction and another.
By the very clear weight of authority, such instruction, though disapproved and concerned either as useless and unnecessary, or as liable to mislead the jury, is held not to be *147either fundamentally erroneous or inherently prejudicial, and not reversible error unless appearing to be prejudicial in the particular case. And such instruction, when including the aforesaid omitted words “from the evidence” in the sentence above indicated, is approved in a number of jurisdictions. (16 C. J., sec. 2406, p. 995 and cases cited; note in 21 Ann. Cas. 564 to McQueary v. People, 48 Colo. 214, 110 Pac. 210.) The instruction in the Colorado case last cited was in substantially the same words as the instruction in this and the Robinson case, and omitted the words “from the evidence” in the sentence above referred to. The instruction was sustained, the court saying, however, that it did not wish to be understood as commending it, but that on the contrary, it regarded it as useless because conveying no information which men of ordinary intelligence do not possess. The same instruction is held hot to be erroneous also in Kansas (State v. Morrison, 72 Pac. 554), California, (People v. Clark, 192 Pac. 521), and Michigan (Dodge v. Reynolds, 135 Mich. 692).
Such an instruction is said to have originated with the language of Chief Justice Gibson in Comm. v. Harmon, 4 Pa. St. 273, followed in Fife v. Commonwealth, 29 Pa. St. 429, the latter ease holding that the instruction “although liable to be misunderstood by a jury, is not erroneous as a matter of law. ’ ’ In McMeen v. Comm. 114 Pa. St. 300, it was said by Mr. Justice Paxson, delivering the opinion of the court, referring to the holding in the Fife case: “Yet even this ruling, it appears to me, requires some qualification. If it does mislead the' jury, or is so used that it is likely to mislead the jury, we regard it as error. But in the case at bar, as in Com. v. Harmon, the language used was used in connection with the evidence. Thus, the learned judge said in a sentence immediately preceding the one assigned as error, ‘This reasonable doubt is not one which the jury will reach out for to relieve them from finding a verdict of guilty, but such a doubt as is left from the failure of the evidence to convince your minds of the guilt of the defendant.’ Undoubtedly, a jury should be convinced *148from the evidence where he would be convinced aá a man, and when the language is quoted in this way, we see no technical error. But as was said in Fife v. The Com., supra, it is an expression that is liable to mislead a juijy, and for my own part I could wish that it had never found its way iñ the books. Severed from its connection it is eásy to see how a jury may be misled. There are many cases in which jurors, as men, may believe a person on trial for a crime to be guilty, when the evidence in the case would not warrant a conviction.”
In a later Colorado case, Sarkisian v. People, 56 Colo. 330, 138 Pac. 26, the same instruction was given as in the Robinson case and in this. The judgment was reversed upon other grounds, but after announcing such reversal, Gar-rigues, J., delivering the opinion of the court, and speaking for two other justices, said'that he thought the instruction bad with the words “from the evidence” omitted, though in view of what was said in McQueary v. People, supra, it may not be reversible error where the jury are told in some other proper instruction that they are to find from the evidence, and he further said that he believed the instruction proper when correctly given. In a still later Colorado case, however, Highley v. People, 177 Pac. 975, the instruction was expressly condemned and held to be prejudicial error, because it did not refer to the evidence, the Robinson case being quoted from and followed. And the court seems to have been led to declare the instruction to be reversible error by the continued practice of district attorneys and trial courts to ignore the court’s condemnation of it. In several instructions in the case at bar thé jury were told that their verdict must be based upon the evidence; particularly in the 8th, which states that it is incumbent upon the prosecution to establish all the mate1 rial allegations of the information by competent evidence beyond a reasonable doubt, and in another instruction on reasonable doubt, the 14th, it is said among other things that “it is a state of the case which, after the comparison and consideration of all the evidence leaves the minds of *149the jurors in that position that they- cannot say' they feel an abiding conviction, to a moral certainty of the .truth of the charge,” that “all the presumptions of law, independent of evidence, are in favor of innocence,” and that “the evidence must establish the proof of the fact to a reasonable and moral certainty;” and further, by another.instruction stating that “to warrant a verdict of guilty at your hands, the defendants must be proven guilty so. clearly and conclusively that there is no reasonable theory upon which they can be found innocent when all the evidence of the case is considered together.”
• The instruction is condemned in West Virginia, but held not to be reversible error unless found to have been prejudicial. Thus it was said in State v. Young, 82 W. Va. 714, 97 S. E. 134: “We have had occasion recently to comment upon the propriety of giving such an instruction to the jury. In the case of State v. Worley, 82 W. Va. -, 95 S. E. 56, it was condemned and in the cases of State v. Snider, 81 W. Va. 522, 94 S. E. 981, and State v. McCausland, 96 S. E. 938, decided at this term of this court, it was disapproved. In each of these cases, there was another ground upon which reversal was necessary, and it was not held that the giving of this instruction would justify a reversal if some other ground did not exist therefor. Nor do we say in this ease that this alone would justify setting aside the verdict. There may be cases where the giving of such an instruction would require the reversal of the judgment, while there may be others where it can be said that no injurious effects could have resulted therefrom.” In State v. Price, 83 W. Va. 71, 97 S. E. 582, the same court said: “While we have never reversed a conviction upon this ground alone, in the case of State v. Young, 97 S. E. 134, decided at this term of this court, we expressed the opinion that there might be cases in which the giving of this instruction would compel us to reverse it. Certain • it is that it can accomplish no purpose but a mischievous, one, and in no case should it be given.” And it was said by the same court in the later case of State v. Ringer, 100 S. E. *150413: “We do not understand why. counsel and some of the trial courts persist in the use of this instruction * * *, The giving of this instruction always imposes upon us the burden of determining in the particular ease whether the party resisting it has been prejudiced thereby; not always an- easy deduction, and one which the court ought not to be called upon to determine. In this case we have concluded that the judgment must be reversed upon another ground, and we are relieved thereby from determining whether the instruction was prejudicial.”
We think it is disclosed by this review of the authorities that such an instruction is not generally regarded as fundamentally erroneous, or inherently or necessarily prejudicial, even by the courts condemning or disapproving it, and that it is reversible error only when it appears to have been prejudicial, and that in several jurisdictions it is approved as a correct and proper statement of the law. And it follows that the error in giving it is not of such a character as to exclude it from the rule requiring timely and definite exceptions as a condition to the consideration of alleged errors by á reviewing court.
While we need not, therefore, consider the alleged error in the instruction, we have above referred to or quoted the remarks of other courts condemning it, for the purpose partly of discouraging its use by trial courts in this jurisr diction, even in the form approved in the Spies case, since it may mislead the jury or tend to do so and become thereby prejudicial error, and in any event, as declared .by some of the cpurts, though it may not be error, it is useless and unnecessary, and, when given, may afford an opportunity to bring the case before an appellate court for review, when that might not be justified upon any other ground. (People v. Whitney, 53 Cal. 421; People v. Clark, supra; McQueary v. People, supra.)
.We think it unnecessary to discuss the other instructions complained of, further than to repeat that the error, if any, in giving them, is not such as. should be considered in the *151absence of a proper exception. For the reasons stated we are constrained to deny the petition for a rehearing.
Rehearing Denied.
Kimball and Blume, J. J., coneur.