
    15673.
    Joseph v. The State.
    Decided October 7, 1924.
    Indictment for larceny of hog; from Camden superior court— Judge Highsmith. April 25, 1924.
    Wingate testified, that he missed from his range a black, unmarked male hog, and that after he missed it he found Saul Joseph, the defendant, with the hog. He testified: “I heard some shooting and I came around the side of the swamp and around the field and saw a fellow with a horse and wagon, and I stopped and he saw me and stopped too. . . When I got down a little farther towards him he got his gun and went off, slipping this way, like he was after something. . . I came back to the wagon and the hog was covered up in the wagon with something, . . but the hog’s tail was sticking out, and . . Saul Joseph, the defendant, opened it. He was on the wagon. I says, ‘Saul, you have got my hog.’ He says, ‘No, sir; it’s my hog.’ I told him already it was mine. So he told me it was his hog, but it was mine. He might have had a hog like that. . . It belonged to me. . . This defendant claimed that the hog was his. He was in possession of the hog and carried it off. . . I suppose he stopped the wagon when he saw me as he was coming up that way. . . He said that he shot the hog. . . He lives about two miles from where I saw him, and it was on the hog range. . . Where I saw Saul was in the general direction of his house. The land I found him on, I believe, belongs to W. B. Simpson. I have lost hogs on my range before. Male hogs take a pretty wide range sometimes. There are plenty of black hogs on the range; they are very numerous. This hog was practically coal black. If it had any distinguishing marks about it I don’t remember them. . . There wasn’t a thing to distinguish this hog except that it was black. Saul Joseph was standing in the road when I saw him. . . I rode up to the wagon and asked him about the hog, and he uncovered it himself. I don’t remember whether I got down off my horse or not. . . I don’t think I turned the hog over in the wagon, but I know that the hog in the wagon was not spotted on the under side, because it was the black hog that belonged to me. . . Saul did not try to run off. He insisted that it was liis hog, and he took it right on off. I went one way and he went the other. I did not take a possessory warrant to get possession of it.” “I think it was on the 13th day of August of last year. . . There was a November term of the superior court here after that happened, but I don’t remember when I went before the grand jury. I may have taken out a warrant in January. . . 'I waited about prosecuting Saul for reasons best known to myself. Other people’s hogs run freely on the range with mine. I mark my hogs when I can get hold of them. This one was skittish and I could not get hold of him. I did not state that Saul did not have hogs in that range.”
   Luke, J.

Joseph was convicted upon an indictment charging him with the theft- of “one black male hog unmarked.” The evidence did not authorize the conviction.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.

There was evidence that at the time referred to by Wingate the defendant had black hogs, some of them unmarked, and that he had an unmarked black male hog, “running open on the range.” The defendant, in his statement at the trial, denied his guilt, and said that the hog in question belonged to him.

Mclillreath & Willcerson, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.  