
    14413.
    WATSON v. THE STATE.
    A conviction of larceny of a mule was not authorized as to the defendant in this case.
    Decided May 15, 1923.
    Indictment for larceny; from Wilkes superior court — Judge Shurley. February 5, 1923.
    
      Hugh E. Combs,.for plaintiff in error.
    
      M. L. Felts, solicitor-general, contra.
   Luke, J.

Doc Watson and Claiborn Watson were indicted for the offense of larceny of a mule. Doe Watson pleaded guilty. Upon the trial of Claiborn Watson the evidence showed that both he and Doc Watson were riding together in á buggy drawn by the mule. The only positive evidence as to who stole the mnle was from Doc Watson. He testified positively that Claiborn Watson had nothing to do with the larceny of the mule, and that he (Doe Watson) committed the theft a day prior to the day on which Claiborn Watson was seen riding in the buggy with him. The evidence was positive that other persons also were riding in the buggy drawn by the mule, and in every instance Doc Watson was driving the mule. The evidence is positive that the two defendants worked at different places. The defendant’s statement at the trial was to the effect that he was invited to ride in the buggy with Doc Watson and knew nothing of the theft of the mule. The evidence is positive that the defendant did not come to town in the buggy with Doe Watson, who claims to have committed the theft. Under the evidence we hold that the jury were not authorized to convict the defendant, and for this reason it was error to overrule the motion for a new trial.

Judgment reversed.

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