State v. Vogel

AILSHIE, C. J.

— The defendant was convicted of the crime of larceny and sentenced to an indeterminate term of from one to fourteen years in the state penitentiary. This appeal involves only one question, and that is the sufficiency of the •evidence to support the verdict and judgment.

The defendant was a butcher at Idaho Falls, and the prosecuting witness was also a butcher who was interested in an •opposition shop at the same place. The evidence in the ease is only circumstantial. It seems to be admitted that the prosecuting witness lost a beef steer, as testified to by him and other witnesses for the state. It is equally clear and is practically admitted that the defendant did not in persod take • the animal. However, the intimation seems to run through the record that the defendant received the animal,, knowing it was stolen,' and that he was in some way interested in or accessory to the larceny of the animal.

We have examined with care all the evidence contained in the record for the purpose of discovering the evidence and circumstances on which the verdict in this ease was based and on which it can legally rest. We have utterly failed to find evidence sufficient to justify a conviction. As said by this court in State v. Burke, 11 Ida. 420, 83 Pac. 228, if the defendant be guilty, he should “be convicted upon evidence and not upon insinuations and innuendo. The administration of even-handed justice demands it, and the law will sanction no other kind of a conviction. It is not enough to say a crime has been committed and somebody has committed it, and that somebody shall pay the penalty therefor, and that the state has been unable to find any other person upon whom they could fasten the crime, and that it is entirely possible and was altogether convenient for the defendant to have perpetrated the offense. Something more must be done; facts or circumstances should be developed tending to connect the defendant with the commission of the offense such as would be inconsistent with the actions and conduct of an innocent man.”

We do not feel that the verdict in this case should be allowed to stand. There are circumstances contained in the record which lead us to the unavoidable conviction that a new trial should be had in this case. For that reason we refrain from further comment on the evidence.

The judgment is reversed, and the cause is remanded and a new trial is ordered.

Stewart, J., concurs.