
    STATE, Respondent, v. DEMERLY, Appellant.
    (168 N. W. 167).
    (File No. 4315.
    Opinion filed June 25, 1918.)
    1. Larceny — Sheep Mixed with Defendant’s at Shearing' Pen — Allowing Owner’s Sheep to be Taken on Discovery,' Effect, re Guilty Knowledge? — Instruction.
    Where, in a prosecution for larceny of sheep, the evidence showed that the sheep of defendant were being sheared at a pen, and that another’s sheep had become mixed with his own while held awaiting shearing, that some of them had been shearéd and branded with his own brand, defendant claiming that as soon as he learned that they were mixed with his own he notified owner and. went with him to the pens and the owner there found among defendant’s sheep part of the number of his own sheep charged to have been stolen, and which he was allowed to take away, held, that an instruction that if defendant did not know the other sheep were in his bunch or were being sheared as his own sheep, until he was so informed, and that if he then went with owner and allowed him to pick his sheep from the bunch, then defendant would not be guilty of larceny, correctly stated the law; that the question of defendant’s guilty knowledge was of equal importance with that of taking of the sheep.
    2. Same — Owner’s Branded Sheep Mixed with Defendant’s — Herders’ Knowledge of Shearing as Defendant’s Sheep and Branding With Defendant's Brand, Equally, Guilty — Rule.
    Where evidence showed that at' a sheep shearing pen some sheep owned byr another were, to the knowledge of various herders present, sheared with and as defendant’s sheep, although the owner’s 'brand on them could be plainly seen, and such sheep were branded with defendant’s brand after being sheared, said herd.eirs saying nothing to the owner concerning such transaction, defendant saying “keep still; have a few cases of ■beer on me;” held, that if any larceny was committed, said herders were equally guilty with the owner of the sheep with which said other sheep became mixed.
    3. Same — Other' Branded Sheep Mixed With Defendant’s at Shearing — Shearing and Rebranding as Defendant’s Sheep, Whether Secrecy Constituting Larceny — Statute.
    Where denfendant’s sheep were being held near a shearing pen, and another’s sheep became mixed with the bunch, and some1 of them were sheared as defendant’s, though plainly branded with owner’s brand, and were thereafter branded with defendant’s brand, he claiming, to have notified owner of the fact that some of his sheep were with his own, as soon as he learned of the fact, and went with him while the owner picked out and was allowed to take away several of his sheep from the hunch, and when the herders • remarked a'bout these facts defendant paid no further attention than to say “Keep still; have a few cases of beer on me,” held, that,, conceding there was a conversion, the transaction was not accompanied by that degree of secrecy necessary to constitute larceny, under Section 605, Pen. -Code, defining larceny as the “t.aking of personal property accompanied by fraud or stealth, and with intent to deprive the owner thereof.
    4, Same — Another’s Sheep Mixed With Defendant’s — Shearing and Rebranding them With Defendant’s Brand, Whether larceny of Dost Property — Statute.
    Where another’s sheep became mixed with defendant’s while held near a shearing pen, and were sheared as and then re-branded with defendant’s brand, evidence showing that defendant claimed he, as soon as he learned that such other sheep were with his own, notified the owner and went with him while he picked out several of his own from the 'bunch and was allowed to take them away, other evidence showing that when herders mentioned the fact that such shearing, etc., was being done, defendant paid no further attention than to say “Keep still; have a few cases of beer on he,” held, such transaction did not amount to larcetny of lost property, under Pen. Code, Sec. 606, providing that one finding lost property under circumstances ' giving, him knowledge or means of inquiry as to true owner and who appropriates such, property to his own use, without having made an effort to find the "owner, is guilty of larceny.
    5. Same — Another’s Sheep Mixed With Defendant’s at Shearing Timcv — Shearing and Rebranding them as Defendant’s — Evidence of- Guilt, Sufficiency.
    In a prosecution for larceny of sheep, the evidence showing that the sheep in question became mixed with defendant’s while being held near a shearing pen, some of them being afterwards sheared as and rebranded with defendant’s 'brand, held, evidence was insufficient to sustain a verdict of guilty.
    Whiting, P. J., concurring specially.
    • Appeal from Circuit Court, Lawrence Oounity. Hon. James McNenny, Judge.
    William. Demierly, ‘the defendant, was convicted of the crime of larceny, and from the judgment and from an order denying a netv trial,'he appeals.
    "'Reversed.
    
      Robert C. Hayes, John T. Heffron, and C. P. Seward, for Appellant.
    
      
      Clarence C. CaldweU, Attorney General, T. F. Auldridge, Assistant Attorney General, and1 Dan McCutchen, State’s Attorney, for the State.
    (3) To point three of the opinion, Apellant cited:
    Wharton’s 'Criminal 'Taw, iothi E'd'., paragraphs 130, 131A, 21 iA; 12 Cyc. page 187 and Note; 4th Am. & Eng. Enc. of Taiw, 1st Eld., page 673; 1st Bishop New Criminal Ta.w, paragraphs 633-641-643-889; Tex. Guest v. State, 5 S. W., page 840; Queen v. Flowers, 6 Am. Crim. Rep. 388.
    (4) To point four of the opinion, Appellant cited:
    Pritchett v. State, (Term.) 62 Am.. Dec. page 468; Bishop’s New Criminal Law, par. 802, Subdiv. 4, 837.
    Respondent cited:
    People v. Buelna, 81 Gal. 135, 22 Pac. 396; State v. Hoshaw, 89 M-inn. 307, 94 N. W. 873; State v. Bayes (loiwa) 67 N. W. 674, 37 L. R. A. 116.
   POLLEY, J:

Appellant was convicted o|f the larceny of 50 head of sheep, and, from the judgment of conviction, and! an order overruling his motion for a new- trial, 'hé appeals to this court.

Appellant assigns the insufficiency of the evidence to support the verdict' and newly-discovered evidence, as well as errors of law committed hy the trial count. The larceny is alleged to have been committed under the following circumstances: Appellant and the prosecuting witness, Bates by name, were engaged in the sheep 'business. Each had a drove of sheep, on neighboring ranges in Butte county. In the vicinity of these ranges' were certain sheep ■pens where sheepmen in the surrounding neighborhood brought their sheep at shearing time to. have them1 sheared. During the shearing season of 1916 appellant and Bates, hy chance, 'brought their sheep to! these pens at the same time. Appellant had his sheep in the two droves, or band's, of about sixteen or seventeen hundred head, respectively, while Bates claimed to have had fifteen hundred and thirty-four head in his drove. A herder by the name of Oleson had charge of one of defendant’s droves of sheep., while- another herder by the name of Grayson had charge of the other. The Oleson band: was taken to ■the shearing pens first. ■ The work of shearing his band1 of sheep was interfered with and delayed' b>y rain and bad' weather, and it was some eight or ten days fromi the time they reached the pens before the shearing was -completed. While the Ole-son- sheep were occupying the shearing pens, it wad necessary that the other droves of sheep that were awaiting their turn- at the pens to Ibe herded1 and allowed to- graze in the immediate vicinity. -It appears- that d-uring the time die Qles-on sheep- were in the pen®' -th-e Bates sheep and the Grayson-band of appellant’s sheep were allowed to come in contact, and a few (the exact n.u-miber is not shown) of the Bates sheep mingled with the appellant’s sheep-. But this mingling -of the sheep was not clone with the knowledge of, or through the connivance or negligence of, either appellant or Grayson, b-ut appears rather to have been th-e result o-f negligence -on the part of Bates’ herder in -allowing ¡the Bates sheep to graze1 too near to the appellant’s sheep-. It -dictes- nob ¡appear -that -either Bates or bis herder knew that Bates’ sheep- bad become commingled with appellant’s sheep until after -the Grayson'sheep bad- been -driven -into the shearing pens andl the- shearing had commenced. Neither does it appear just when Grayson learned that the sheep were mixed, though he admits that he knew, for about -a week before he made the fact kn-o-wn to any one else, that some of Bates’ ¡sheep were in 'appellant’s- herd. As soon. -a-,s the 'Grayson sheep reached the pen-s, the shearers dcmmenced shearing. They assumed that the shee-p- all belonged to appellant, and the wool, as it was taken off, was all packed together. The sheep, when sheared, -were turned into a chute, where they were marked with appellant’® brand1 and then turned out into ¡the pern. There was a sharp: conflict in the testimony as to how long the shearing ;oif the Grayson sheep- had been going on -before Bates- learned that some of his sheep- were in the pens, but as soon as he learned the fact he went immediately fo the shearing pens where he found appellant and to-ld appellant that some of his (Bates’) sheep ¡were mingled with appellant’® sheep. Appellant -claims that this was- the first knowledge he -had that any of the Bates shee-p- were ,in the pens with his own,. ITe a,t 'ctoce w-ent into the pens with Bates andl commenced! looking for sheep bearing Bates’ -mark. The sheep had been- marked at shearing time the year before by painting a brand on the short wo-ol, just after the sheep- had -been- sheared. -As tire wool grew, the brand gradually became dim and difficult to distinguish, and, after the sheep-ally became dim and difficult to distinguish, and, after the sheep had been sheared, there was- no ¡way by which they -could be distinguished; but Bates found twelve sheep that he claimed as his and took them away with him. He claimed that at the time he took these sheep out of the pens, all but about three or four hundred of the Grayson sheep had been sheared, there was no-way by which they could 'be distinguished'; but Bates -found twelve sheep that he -claimed as his and took them away with him. He claimed that at the .time he took these sheep out of the .pens, all but about three or four hundred of the Grayson siheep had! been sheared, and it is the theory of the state that there had been the same ratio of Bates’ sheep in -the pens when shearing -commenced that was. there when Bates' m-ade the search. In other wor-d's, having found twelve of Bates’ sheep in with three or four hundred of appellant’s sheep, there must have been from sixty to one hundred of Bates.’ sheep in the entire drove of some sixteen or seventeen hundred. It is the contention of the state that appellant knew the Bates sheep were in with his when the sheep- were put into the pen-s, and that, in permitting the Bates sheep to be sheared as his own -and having them -marked as his own, he was fe-lon-iqusly appropriating said -slh-eep-, as well as the wool -that bad been sheared from their backs, to h-is- own use. On the other hand, it is the -contention of appellant that 'he -did not know that any of the Bates- sheep were in with his own until he was 'informed -of the f-aot :b-y Ba-tes, and that he at once permitted Bates- to examine the sheep and take :clut all that bore the Bates brand; and' that he (appellant) did not knowingly take or appropriate any of the Bates sheep.

Upon the question of appellant’s knowledge the- -co-urt -charged the jury -as follows :

“N'oiw, gentlemen, -on the other hand, -the defendant Demerly, as I understand it, claims that he did -n-ot know that the sheep were in his bunch and -did not lcnlciw that they were being sheared- as his sheep, and that he did not know there were any sheep belonging to Bates and' Humphrey in his ¡bunch, until he was- ‘informed by Mr. Bates, and that immediately u-po-n being informed lire) went with Mr. Bates and allowed Mr. -Bates to pick his sheep- out of the b-unch. Now, gentlemen, if that is the case, the defendant would not be guilty.”

Under this -instruction, which was accepted as the law in th-e -case, and which we believe to- be correct, tihe question of defendant’s guilty knowledge is of -equal importance with -the question of -the taking of the sheep. To prove that appellant knowingly took the Bates sheep', the state put upon the stand, five witnesses, viz., Grayson, Oleson, Burke, Carter, and H,oey. These witnesses were all in or around the shearing pens at times while the 'Grayson banid oif sheep was being sheared, and 'appellant was there a part of tine time. Grayson testified that he knew for about a week before the sheep were driven into the shearing pens that .the Bates sheep were in with appellant’s sheep, but he made no effort to separate them nor did he notify Bates, although he could easily have done sio. He testified that he told defendant about Bates’ sheep some time after the shearing commenced. All of tírese witnesses testified’ that the fact that some of the Bates- sheep were in with and were 'being sheared- as appellant’s sheep -was known to, and was talked of, by every one employed in or -about said shearing pens; that Bates’ brand could -be plainly seen and recognized, and that the shearers saw the Bates brand on the sheep' when they were shearing them; that the matter was talked of by all parties present -and in the presence and hearing of appellant; that appellant paid, no attention to what was being said or doné, except that on several occasions when the matter was mentioned' in his presence he -said, “Keep still; have a few cases .of beer on -me.” The witness t Hoey estimated the number of Bates’ sheep that he saw in with appellant’s sheep at fifteen or twenty, “more or less.” Gray-son, Oleson, and Carter testified that there were “about one hundred” of the Bates sheep in with appellant’s sheep, though just why they all fixed upon that particular number is not made to appear. None of them pretended they had -counted said said sheep or that it was possible to count them,, and Bates lost only seventy head, including the twelve -that he recovered.

If the testimony -of these witnesses is true, and larceny was committed at all, all these witnesses knowingly assisted in committing such', larceny, and are equally guilty -with' the defendant. But the facts as shown by the testimony do not constitute the crime of larceny. Whether or not the defendant converted certain of the Bates sheep to his own use we aré holt called upon to' determine, but, conceding there was a conversion, the transaction was not accompanied by- that -degree of secrecy necessary to constitute the crime -of larceny. Section 605, Penal ‘Code, defines, larceny as the “taking of personal property accompanied -by fraud or stealth, and with 'the' intent to! deprive the -owner thereof.” The gaining possession of the Bates sheep- was not accompanied by fraud or stealth, nor was it done with the intent to deprive the owner thereof. D¡efenidiant m-ay have been guilty of moral turpitude in n-ot taking measures to separate the sheep 'as soon as he. learned that any of the Bates sheep were in the. -shearing .p-en-s .w-ith his .¡own, but the maimer in which the sheep cam-e into .hisi -possession -does- not constitute larceny as defined by section 605, Penal1 'Code. • It is- -claimed by the state, however, tibait appellant is1 guilty, under the provisions of section 606, Penal Code. This section provides that one who finds lost property under circumstances, which give -him. knowledge o-r means -of inquiry as to the true owner and who- 'appropriates such -property to his own use, without having made .an effort to find the -owner,' is guilty of larceny'.' The manner in whlic-h *the sheep' in question, -cam-e into defendant’s possession: -does not constitute finding, of I'o'st .property within the meaning of this statute, .and does not constitute larceny because of th-e insufficiency of the evidence to support the verdict.

The judgment -and order appealed .from -are reversed.

WHITING, P. J.

While refraining-from, -placing any construction upon section 606, Penal-Code, I-concur in holding that the judgment and".order appealed! from should be reversed. I so concur 'because I am of the opinion ¡that the evidence was wholly insufficient to support the verdict.  