
    O. C. Heath, Plaintiff in Error, v. State of Florida, Defendant in Error.
    
    En Banc.
    Opinion filed March 9, 1929.
    
      
      J. M. Calhoun, for Plaintiff in Error;
    
      Fred II. Davis, Attorney General, and Roy Campbell, Assistant, for the State.
   Buford, J.

In this case the plaintiff in error was convicted under an indictment charging him with the larceny of a red and white pided heifer yearling, an animal of the bovine species.

There was no conflict in the testimony except as to the identity of the animal. There was no evidence of concealment.

One set of witnesses testified positively to the identity of this young animal, which was unmarked, as being the property of Mrs. Tyre. The other set of witnesses testified just as positively identifying the animal as the property of Heath. It appears to us that one set of witnesses was mistaken as to the identity of the animal and, so far as the record shows, such mistake was an honest one.

So far as is disclosed by the record whe'n the evidence was all in the jury at best could only guess which set of witnesses was correct in the identification of the animal. This Court has repeatedly held that a person should not be convicted upon guesswork or suspicion. Human liberty should not be forfeited by conviction under evidence which is not sufficient to convince a fair and impartial mind of the guilt of the accused to a moral certainty and beyond a reasonable doubt.

Because of the unconvincing quality of the evidence in this case, justice demands that the judgment should be reversed and a new trial granted. It is so ordered.

Reversed.

Terrell, C. J., and Whitfield and Ellis, J. J., concur.

Brown, J., concurs in the result.  