Appellant was tried upon an information charging him with the offense of receiving stolen property with knowledge that the sam|e had been stolen. At the close of the trial the jury returned a verdict in the following language: “We, the jury, find the defendant guilty of receiving stolen property.” Upon this verdict judgment was pronounced, and from' such judgment and from an order denying his motion for a new trial, defendant appeals.
That the property involved, being something over 200 head of sheep, alleged to have been the property of Millard Cleveland & Sons, had been stolen, and that appellant purchased and received said sheep after they had been stolen, does not seem to be seriously controverted. The only question of importance for the jxiry to determine was that of guilty knowledge of appellant at the time the sheep came into his possession. Upon this question the court gave the jury the following instruction:
“The jury is instructed that it is unlawful for any person to buy or receive into his possession in any manner, upon any consideration, any personal property of value, knowing the same to have been stolen, and. before you can find the defendant guilty of the offense charged in the information, you must be satisfied from the evidence beyond a reasonable doubt of each of the following necessary elements and ingredients of the offense charged: First, that the sheep in question were stolen; second, that they were stolen from Millard Cleveland & Sons by some person other than J. W. Mosher; third, that the defendant, J. W. Mosher, *165received the sheep, upon a consideration, after the alleged larceny had been committed; fourth, that the defendant, J. W. Mosher, at the time he received the sheep, knew that they had been stolen.”
The court then gave the jury two forms of verdict, either of which they might find; First, “We, the jury, find the defendant guilty as charg'ed;” second, “We, the jury, find the defendant not guilty.” In view of these very specific directions from the court it cannot be said that the jury found the defendant guilty of receiving stolen property knowing- the same to have been stolen, nor that they intended to so find. It is not disputed that the appellant received the property, nor that it had been stolen, but there is no clear nor satisfactory evidence that the defendant knew the property had been stolen. -Certainly there is no direct evidence that he had such knowledge, and, in view of the unsatisfactory state of the evidence, the jury may well have entertained a very substantial doubt upon this all-important element of the crime. In order to support the verdict, we must infer that the jury intended to find the defendant “guilty as charged,” but the court has no right to indulge in any such presumption. This question has -been passed upon by this court and its predecessor, the territorial- court. In State v. Peterson, 23 S. D. 629, 122 N. W. 667, this court said:
“It is not -competent for the court to indulge in any presumptions as against the defendant, or to supply the omission in the verdict of the jury of the essential elements of the crime of an assault with an intent to commit bodily injury, and hence its judgment is not based either upon information or the verdict of the jury, and therefore cannot be sustained” — citing Territory v. Conrad, 1 Dak. 363, 46 N. W. 605, and State v. Johnson, 3 N. D. 150, 54 N. W. 547.
Counsel for the state cite State v. Parks et al., 34 S. D. 510, 149 N. W. 161, and State v. Morse, 35 S. D. 18, 150 N. W. 293, Ann. Cas. 1918C, 570, recently decided by’this court in support of their contention that the verdict is sufficient. Had the jury merely found the defendant “guilty” without further specifying the act, what is said in those cases might have some application, but here the jury specified the particular act of which.they found the defendant guilty. The act so found is not the act charged in *166the information, nor does the act so found constitute a public offense. Having specified the particular act of which they found the defendant guilty, the only reasonable inference is that they did not believe he was guilty of the other element of the offense charged in the information, to wit, guilty knowledge.
There are numerous other errors assigned in the record, but, as they may not occur on another trial, we do not deem' it necessary to pass upon them at this time.
The judgment and order appealed from are reversed.