
    John Fruger v. The State.
    No. 4174.
    Decided December 9, 1908.
    Theft of a Hog—Insufficiency of Evidence.
    See opinion for evidence held to be insufficient to support a verdict for theft of a hog.
    Appeal from the District Court of Polk. Tried below before the Hon. L. B. Hightower.
    Appeal from a conviction of theft of a hog; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      F. Campbell, for appellant.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   RAMSEY, Judge.

The appellant was indicted for the theft of one hog, the property of Lewis Clay. He was tried and convicted and has, appealed to this court and insists that the evidence does not warrant the verdict.

The testimony shows that one Josh Cherry on the evening of the 7th day of February, 1907, in company with one Dave McCardell went to the home of the appellant and 'the said Cherry saw a hog hanging up in the back yard at appellant’s house that had been cleaned. This hog weighed about one hundred and fifty pounds, looked like it was three or four years old, had long tusks and was marked with a crop off the left ear with about one-half of the ear cut off. This was the mark of Lewis Clay. The witness McCardell did not see the hog, or that is did not get in sufficient distance to notice -the mark. The witness and1 McCardell reported this to the officers and the -night of the same evening that the witness Cherry saw the hog the officers in company with Lewis Clay, the alleged owner, went to -appellant’s house and searched it for meat. They found the head of a hog freshly killed. Lewis Clay examined this hog’s head and decided it was not his hog and so testified on the trial. He further testified that his hog was a barrow, between three and four years’ old, had long tusks and a big head. The State also proved by one Moore that Houston Hobbs bought a hog from the appellant and Houston Hobbs testified that the hog he bought from the appellant was a sow. This is substantially the testimony in the ease. We are of opinion that the evidence is wholly insufficient to support the verdict and that the court below erred in not granting a new trial for which error the case will be reversed and remanded and it is so ordered.

Reversed and remanded.  