
    (April 4, 1896.)
    STATE v. SMITH.
    [44 Pac. 554.]
    Practice — New Triai. — Exceptions.—To entitle one to have the acT tion of the lower court in granting, or refusing, a new trial in a criminal case, the record must show that an exception was taken to such ruling. The evidence in this case examined and held to sustain verdict.
    (Syllabus by the court.)
    APPEAL from District Court, Nez .Perees County.
    James W. Eeid, for Appellant.
    The contention by defendant is that the verdict-was against law and evidence; that the only evidence against him is his possession of the property, of which he gives, not only a probable and reasonable explanation, but one which the state had the opportunity to contradict if not true. It is not incumbent on the defendant to establish an innocent connection with the stolen property by a preponderance of proof; if the evidence raises a reasonable doubt as to guilty possession, the presumption is rebutted, and he is entitled to an acquittal. (12 Am. & Eng. Ency. of Law, 851, 852, and the numerous authorities there cited.) When the circumstances on which the verdict is, based can be reasonably explained by some other hypothesis than, that of the defendant’s guilt, or as perfectly consistent with the defendant’s innocence, then a new trial should be granted. (State v. Nesbit, ante, p. 548, 43 Pac. 66; Bayley v. Baton, 8 Cal. 159; People v. Ah Loy, 10 Cal. 301.)
    Attorney General George M. Parsons, for the State.
    There can be no doubt as a general proposition of law that the exclusive possession of goods recently stolen, is sufficient to put an accused person upon his defense. (3 Eice on Evidence,. 733; People v. Kelly, 28 Cal. 423, 428, 429.) The possession, of the property was circumstantial evidence tending to prove the guilt of defendant, and he should have rebutted this testimony. (State v. Bn, 10 Nev. 277, 281; Tilly v. State, 21 Fla. 242, 249; State v. Haverly, ante, p. 484, 42 Pac. 506.)
   HESTON, J.

The defendant was convicted of the crime of larceny in the stealing of three head of cattle. Epon the trial the state proved ownership of the property in one Yeraon, possession by defendant, and sale by defendant to one Bomberg, a butcher in the town of Genesee. Epon the examination of Bomberg it fell out that, upon the sale of the cattle to him by defendant, the latter made to him (Bomberg) what pretended, to be a bill of sale, in which he attempted to state from whom he got the cattle, and it was further proven, on examination of some of the state’s witnesses, that defendant had made statements to them as to whom he procured the cattle from. The defense offered no testimony. It is claimed by appellant that it was incumbent ujdou the state, before a conviction could be had, to disprove the statements which the witnesses for the state testified, defendant had made as to how and of whom he procured the cattle. We know of no rule of law to support such a contention, and onr attention has not been called to any. •

It is claimed by appellant that the evidence does not support the verdict. We think the evidence on the part of the state was abundant to warrant the verdict. We have examined the charge of the court carefully, aud are satisfied that it clearly and fairly states the law.

It is objected by the attorney general that the record does not show that any exception was taken by the defendant to the order of the court overruling his motion for a new trial. We think this objection is well taken. Subdivision 4, section 7942 of the Revised Statutes of Idaho, provides for the talcing of exception to an order of the court “in granting or refusing a motion for a new trial.” To entitle an appellant to a review of such order, exception must be saved in the record. The judgment of the district court is affirmed.

Morgan, C. J., and Sullivan, J., concur.  