
    Shepherd et al. v. Commonwealth.
    October 1, 1948.
    Henry Stephens, Jr., for appellant.
    A. E. Punk, Attorney General, and Zeb A. Stewart, Assistant Attorney General, for appellee.
   Opinion op the Court by

Stanley, Commissioner

Affirming in part, reversing in part.

The sole question is the sufficiency of the identity of the four defendants as the thieves who stole four head of cattle. The appellants, Bev Shepherd, Harrison Marsillet, Richard Hale and Will Hale, were convicted of grand larceny and sentenced to one year imprisonment.

Some time in May, 1947, Mrs. Osa Slone had the cattle stolen from her pasture. One day two women living at different places on Buck Creek saw four men driving such cattle, but none of the men were known to or identified by the witnesses. A dealer testified that •on May 16, he bought the cattle from the defendant Shepherd, whom he positively identified, and that Shepherd was accompanied by three young men. They claimed some interest in one or more of the cattle. The witness had paid but little attention to them, his trading being with Shepherd, and he would not undertake to identify the other defendants on trial as being the men. A resident of the neighborhood related that one day in May these four defendants were at his home and on leaving went in the direction of Mrs. Slone’s pasture.

The defendants each categorically denied knowledge or participation in the taking or sale of the stolen cattle. The mother of the two Hale boys testified Marsillet had lived with them since childhood and that Shepherd was employed on the farm, hut none of them had been off the place for sevéral days before May 16.

As to the appellant Shepherd, the evidence of his possession and sale of the cattle is sufficient to establish his guilt of the theft (Jacobs v. Commonwealth, 260 Ky. 142, 84 S. W. 2d 1) and the evidence of his identity was ample. But there is an entire absence of evidence to identify the other three defendants as his companions.

The judgment is affirmed as to Shepherd and reversed as to Harrison Marsillet, Richard Hale and Will Hale.  