
    TROY SHIEW v. STATE.
    No. A-10524.
    May 8, 1946.
    (169 P. 2d 213.)
    I. L. Cook, of Atoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and W. H. Parker, County Atty., Atoka County, of Atoka, for defendant in error.
   BAREFOOT, J.

Defendant, Troy Sbiew, was charged in the district court of Atoka county with the cime of larceny of livestock, to wit: one cow and one heifer; was tried, convicted and sentenced to serve a term of four years in the State Penitentiary, and has appealed.

At the time this case was set for oral argument counsel for defendant was present, and his only contention was that the judgment and sentence should be modified. No brief has been filed by the defendant, or by the state.

We have carefully examined the record. Defendant was charged in the information with the larceny of one black bald-faced cow about three years old, with horns, not marked or branded, and one red white-faced heifer with crop off each ear, and not branded, the property of Newton Baker, of Atoka county.

The heifer above described was not found or recovered. The cow was found in Muskogee county. They had been purchased by a Mr. Lester, from the stockyards in Muskogee.

One witness, Leonard Smith, testified that he saw the defendant near his home in Pittsburg county about the 20th of April, 1943, (the date the cattle were alleged to have been stolen) and that he was driving a truck in Avhich he had three head of cattle. The description of these cattle was the same as those of Mr. Baker and of another party who had lost a cow at the same time, and identified at the time the cow of Mr. Baker was found in Muskogee county. Mr. John Brown testified that he was in the commission business in Muskogee. That during the spring of 1943 he sold the three head of cattle above described for the defendant in the stockyards at Muskogee. He identified the defendant as the party who had the cattle, and that he gave him the assumed name of “Roy Payne”, and it was under this name that the cattle were sold. The duplicate copy of the sales slip was introduced in evidence, and it showed that two head of the cattle were sold to Mr. Lester, and the other to a Mr. Bailey. Also introduced in evidence was the check to Roy Payne for $174.26, in payment for the cattle.

No evidence was presented by the defendant, and he did not testify in his own behalf.

A motion for continuance was made by the defendant, but the same was overruled by the court.

Prom the above statement, we find that this court would not be justified in modifying the judgment and sentence entered in this case. Defendant was tried before a jury, and the jury assessed the punishment.

Finding no error in the record, the judgment of the district court of Atoka county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.  