Barnes v. State , 98 Miss. 458 ( 1910 )

Anderson, J.,

delivered the opinion of the court.

The charge against appellant is the larceny of a red Durham bull, the property of J. C. Adams. He was convicted of a criminal trespass for his taking, as may be done under section 1264, Code 1906, from which judgment he appeals to this court.

He defends on the ground that he took the bull in good faith, believing he had the right to do so, which,' under the statute referred to, is a good defense. It is contended on his behalf that there was not sufficient testimony to go to the jury on the question of guilt, and therefore the court below erred in refusing the peremptory instruction to the jury to return a verdict of not guilty. The testimony is undisputed that Matthews owned a large number of cattle running out, among them a red Durham bull; that he authorized appellant to take up his bull and break it to the yoke, telling him where he would probably find it, but not informing him as to his brand, or whether the bull was branded; that appellant took up a bull at a different place, answering, however, the description of that of Matthews, but in the brand of, and in fact the property of, Adams, which he was driving about over the country to his wagon, openly, in the daytime, when Adams discovered and identified his property; appellant telling him frankly at the time where he got the bull, and his authority for taking it up. The only testimony tending in the least to show guilt is the fact the bull was found in a different range from where Matthews thought he would be found, and was branded in the mark of Adams. There was no testimony to show that appellant knew either the brand of Matthews or Adams. Such testimony is entirely too flimsy to support a verdict of guilty. ' The court should have given the peremptory instruction. Reversed, and remanded.