— At the March term, 1891, of the Stone county circuit court, Jackson Green, the defendant, and Andrew Points were jointly indicted for grand larceny of five yearling steers, the property of William Copeland. At the same term they were arraigned and entered a plea of not guilty. The cause was then continued until the September term of said court, at which term a severance was granted Andrew Points.
Upon a trial of this defendant at .the September term, 1891, the jury failed to agree and were discharged, and the cause continued until the March term, 1892, at which term the defendant was again placed upon trial, and the jury again failing to agree, were discharged, whereupon the defendant filed an application for a change of venue, which was granted and the cause transferred to the Newton circuit court. At the May term, 1892, of the Newton circuit court, the defendant was tried, convicted, and his punishment assessed at two years’ imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest, he appealed to this court.
The testimony offered upon the part of the state was that William Copeland was the owner of five yearling steers, one brindle and one red cow, in December, *3011890; that on Sunday, December 21, they were turned upon a range near the residence of Copeland (which seems'to have been his custom), and were driven off from the range and afterward all except one cow was found in the possession of the defendant, Jackson Grreen. The one cow taken, but not in his possession, was found to be in the possession of Mrs. Edington, then, now the wife of defendant G-reen. The defendant stated she had been exchanged to Mrs. Edington. The defendant claimed to have bought the five yearlings from his codefendant, Andrew Points, whom the testimony shows to have been a fioy about seventeen or eighteen years of age, very ignorant, and, it is intimated by some of the witnesses, of rather feeble mind. These theories were presented to the jury, and they elected to believe the theory of the state and found the defendant guilty.
Appellant’s counsel has filed no brief in the cause, but the whole record has been carefully scrutinized, and we find nothing of which defendant can justly complain. The indictment is sufficient, and the instructions exceedingly fair to the defendant. The remarks attributed to the prosecuting attorney were not objected to at the time and no exceptions were taken or saved thereto. The mere assigning of these remarks as ground for a new trial, neither proves they were made, nor constitutes them a part of the record. The evidence of defendant’s witnesses, if credited by the jury, should have secured his acquittal; but there was sufficient evidence pn the part of the state, if believed by the jury, to sustain his conviction. In such a case it is peculiarly the duty and province of the jury to find the facts. This they have done against the defendant under the most favorable instructions. The judgment is affirmed.
All the judges of this division concur.