
    The State of Kansas v. Amos Brubaker.
    No. 10341.
    1. Verdict — Disputed Testimony. A verdict, resting upon disputed testimony cannot be set aside in a court of review if that part of the evidence tending to support the verdict is legally sufficient to establish all the essential facts necessary to constitute the crime of which the appellant was found guilty.
    2. Circumstantial Evidence — Instruction. The testimony examined, and found to be sufficient to warrant the giving of an instruction in regard to circumstantial evidence, and also sufficient to sustain the verdict and judgment.
    
      Appeal from Shawnee District Court. .
    
    Amos Brubaker was convicted of grand larceny. 'He appeals. The opinion states the case.
    
      Quinton Sc Quinton, and Vance Sc Campbell, for appellant.
    
      F. B. Dawes, attorney general, and H. C. Safford, county attorney, for The State ; A. J. McCabe, of counsel.
   The opinion of the court was delivered by

Johnston, J.

: This is an appeal by Amos Brubaker from a conviction for grand larceny. He was charged with stealing five hogs, the property of Alonzo Beal, of the value of $27.50, and upon testimony that was largely circumstantial he was found to be guilty of the charge. The punishment adjudged was imprisonment at hard labor for a term of two years, and from the sentence and judgment he prosecutes this appeal.

The principal complaint is that the testimony upon which the conviction rests is insufficient, but an examination of the same fails to satisfy us that the judgment should be disturbed. It is true that there is a sharp conflict in the testimony relating to the identity of the hogs alleged to have been stolen, and it is earnestly insisted by counsel for appellant that there is a clear preponderance in his favor. If even the preponderance of the evidence was against the verdict, it could not be set aside if that part of the evidence tending to support the verdict is legally sufficient to establish all the essential facts necessary to constitute the crime of which the appellant was found guilty. (City of Cherokee v. Fox, 34 Kan. 16; The State v. Smith, 35 id. 618; The State v. Blakesley, 43 id. 250; The State v. McLain, 43 id. 439 ; The State v. Hunter, 50 id. 306.)

It appears that the appellant sold and delivered five hogs at the packing-house in Topeka. Shortly afterward Beal arrived at the packing-house, and upon learning that the appellant had sold the hogs proceeded to the stock-yards, where those purchased had been placed with about 25 others, and at once identified the five which had been purchased as his own. Several other persons who had had charge of the hogs belonging to Beal also identified them as his property. That Beal lost the hogs is not questioned, and that those found in the stock-yards and identified by Beal as his own were brought there and sold by appellant is conceded. The evidence in regard to the identity of the hogs is not very satisfactory, but that offered by the state, although contradicted, was of a positive character and certainly sufficient of itself to uphold the verdict. The jury, to whom the case was fairly submitted, chose to believe the witnesses for the state, and the district judge after hearing the disputed testimony and reconsidering the same on a motion for a new trial has approved the verdict. A determination of facts so made is final in this court.

Objection is made to the charge given by the court in regard to circumstantial evidence, upon the ground that the testimony was almost entirely positive and direct, and that therefore the instruction was misleading. It appears to be a succinct and correct statement of the law upon that subject, and the testimony being largely circumstantial it was entirely proper that such an instruction should be given.

Exceptions were taken to several of the rulings upon the testimony, but we find nothing substantial in them, or in any of the objections that are made. The judgment of the district court will be affirmed.

All the Justices concurring.  