
    20631.
    SHAHAN v. THE STATE.
    Decided July 15, 1930.
    
      
      Norman Shalluch, for plaintiff in error.
    
      John G. Mitchell, solicitor-general, contra.
   Broyles, C. J.

Under tlie facts of the case as disclosed by the record, the conviction of the accused of the offense of simple larceny (cattle stealing) was unauthorized. The accused, after consulting an attorney at law, had an attachment issued by a justice of the peace against the owner of the cattle for an alleged debt of $95.29. Subsequently the accused and a deputy sheriff went to the house of the owner, and the officer seized the cattle under the attachment and turned them over to the accused for safe-keeping until they should be sold at public sale. Subsequently the sale occurred, and the animals were bought by a third person. There was other evidence that tended to show that the swearing out of the attachment and the further legal proceedings were mere subterfuges and tricks on the-part of the accused to enable him unlawfully to obtain possession of the cattle, and the controlling question was whether he took possession of the animals under a bona fide claim of right, or with the intent to steal them (animo furandi). On this vital question the evidence was wholly circumstantial,'and was not sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt.

Judgment reversed.

Luhe and Bloodivorih, JJ., concur.  