BURNETT, J.
1, 2. There are numerous assignments of error, but we shall consider only one of them, that challenging the sufficiency of the evidence to sustain a conviction. The defendant was indicted under Section' 1950, L. O. L., reading thus:
“If any person shall commit the crime of larceny by stealing any horse, gelding, mare, mule, ass, jenny or foal, bull, steer, cow, heifer, hog, dog or sheep, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years, or by imprisonment in the county jail not less than three months nor more than one year, or by fine of not less than $50 nor more than $1,000. ’ ’
There is another statute, Section 1954, L. O. L., which is here quoted:
“If any person shall willfully and knowingly make, alter or deface any artificial earmark or brand upon any horse, mare, gelding, foal, mule, ass, jenny, sheep, goat, swine, bull, cow, steer or heifer, the property of another, with intent thereby to convert the same to his [623] own use, such person shall be deemed guilty of larceny, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one nor more than five years.”
As the indictment is drawn under the former section, it must be considered solely with reference to that standard, for, as taught in State v. Howard, 41 Or. 50 (69 Pac. 50), the two offenses are distinct and a conviction cannot be had under an indictment charging one offense when the evidence points exclusively to the other. There is no evidence in the record of any actual asportation of the property from the custody of the true owner. As stated, all the evidence of property rests upon the testimony concerning the presence of mutilated brands on the animals listed in the indictment. It is said in Section 8 of Chapter 33, Laws of 1915:
“In all suits at law or in equity, or in any criminal proceedings, when the title or right of possession is involved, the brand of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, and that such owner is entitled to the possession of the animal at the time of the action; provided, that such brand has been duly recorded as provided by law.”
So far as this statute is concerned, without reference to the presumptions of innocence, regularity of private transactions and the like and confining ourselves to the mere presence of a brand upon an animal which is all the statute deals with, the same presumption must affect' any brand coming within the purview of the enactment, viz., a recorded brand found upon the animals in question. The statute says nothing about age or priority of brands and in construing it or giving value to the prima facie presumption it creates, we cannot read into the law anything of that kind. Viewing the [624] matter, therefore, from the statutory standpoint, when we find two recorded brands upon a cow the presumptions arising from them balance each other and the state must produce something to disturb this equipoise adversely to the defendant, if it would prove the property to be that of another, or that the defendant stole it. The prosecution relies upon the testimony about discovering the cattle mentioned in the indictment in company with defendant’s herd and still other cattle on the public domain where all cattle indiscriminately in that region could and did range. They were not in the actual custody of the defendant, neither is there any evidence tending to show that they ever were in his actual control. The question then is whether such testimony is sufficient to turn the scale against the defendant.
3. Much stress was laid also in argument upon the testimony about the mutilation and changes of brands upon the animals in question, the comparative ages of different brands on the same animals, the earmarks and dewlaps, and the like; but all this only goes to affect the question of property of someone in the cattle in dispute. The state had the burden of proving that the animals in question were the property of individuals named as owners in the indictment. Its task did not end there. It was compelled to go further and prove the other essential element, that the -defendant tookthe cattle. We may safely say that there is testimony sufficient to go to the jury that the individuals named in the indictment owned the cattle described therein and that someone changed or effaced their brands and put on other brands and marks, but there is no evidence in the record that the defendant is that someone who made such changes either in person or by [625] an agent. This constitutes a hiatus in the case that is fatal to the prosecution.
4. It -will not fill the gap to show that the defendant or his employee was in the vicinity where the cattle ranged. They both had a right to be there. In State v. Odell, 8 Or. 30, it was decided that proof that the prisoner was in the same town about the time of an alleged larceny in a store is not alone sufficient to corroborate the testimony of an accomplice or warrant a conviction, and it is the duty of the court so to instruct the jury. If such circumstances will not corroborate an accomplice who made a clean breast of his connection with and the participation of the defendant in the commission of the crime charged, by a parity of reasoning similar testimony adds nothing to the state’s case against the present defendant. State v. Odell, 8 Or. 30, was approved in State v. Townsend, 19 Or 213 (23 Pac. 968), but was distinguished-in the latter case on the ground that the defendant’s presence near the scene of the crime was connected with suspicious circumstances, among which were that it was unusual for him to be in that vicinity; that he was there under an assumed name and that he was acting in concert with the other defendant, who avowed his own guilt. The Odell case was approved and followed in State v. Scott, 28 Or. 331 (42 Pac. 1), which teaches that mere opportunity to commit adultery is not sufficient to corroborate the woman who gave a detailed account of her adulterous liaison with the defendant when they were spending the day together in the woods where she affected to be hiding from her husband and the defendant was ostensibly fishing. Other parties saw them in the woods together and on the next day, according to the declarations of other witnesses, they went to Portland on the same train. Mr. Justice Mooke quotes [626] with approval this excerpt from 1 Eoscoe’s Cr. Ev., page 133:
“What appears to be required, is that there shall be some fact deposed to independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it.”
The deduction is that the mere presence of the defendant or his hired man on the range where his cattle and those mentioned in the indictment were being pastured and where both of the men had a right to be, is not a circumstance sufficient to establish the asportation of the animals included in the charge, which were all the time ranging there.
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BURNETT, J.
1, 2. There are numerous assignments of error, but we shall consider only one of them, that challenging the sufficiency of the evidence to sustain a conviction. The defendant was indicted under Section' 1950, L. O. L., reading thus:
“If any person shall commit the crime of larceny by stealing any horse, gelding, mare, mule, ass, jenny or foal, bull, steer, cow, heifer, hog, dog or sheep, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years, or by imprisonment in the county jail not less than three months nor more than one year, or by fine of not less than $50 nor more than $1,000. ’ ’
There is another statute, Section 1954, L. O. L., which is here quoted:
“If any person shall willfully and knowingly make, alter or deface any artificial earmark or brand upon any horse, mare, gelding, foal, mule, ass, jenny, sheep, goat, swine, bull, cow, steer or heifer, the property of another, with intent thereby to convert the same to his [623] own use, such person shall be deemed guilty of larceny, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one nor more than five years.”
As the indictment is drawn under the former section, it must be considered solely with reference to that standard, for, as taught in State v. Howard, 41 Or. 50 (69 Pac. 50), the two offenses are distinct and a conviction cannot be had under an indictment charging one offense when the evidence points exclusively to the other. There is no evidence in the record of any actual asportation of the property from the custody of the true owner. As stated, all the evidence of property rests upon the testimony concerning the presence of mutilated brands on the animals listed in the indictment. It is said in Section 8 of Chapter 33, Laws of 1915:
“In all suits at law or in equity, or in any criminal proceedings, when the title or right of possession is involved, the brand of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, and that such owner is entitled to the possession of the animal at the time of the action; provided, that such brand has been duly recorded as provided by law.”
So far as this statute is concerned, without reference to the presumptions of innocence, regularity of private transactions and the like and confining ourselves to the mere presence of a brand upon an animal which is all the statute deals with, the same presumption must affect' any brand coming within the purview of the enactment, viz., a recorded brand found upon the animals in question. The statute says nothing about age or priority of brands and in construing it or giving value to the prima facie presumption it creates, we cannot read into the law anything of that kind. Viewing the [624] matter, therefore, from the statutory standpoint, when we find two recorded brands upon a cow the presumptions arising from them balance each other and the state must produce something to disturb this equipoise adversely to the defendant, if it would prove the property to be that of another, or that the defendant stole it. The prosecution relies upon the testimony about discovering the cattle mentioned in the indictment in company with defendant’s herd and still other cattle on the public domain where all cattle indiscriminately in that region could and did range. They were not in the actual custody of the defendant, neither is there any evidence tending to show that they ever were in his actual control. The question then is whether such testimony is sufficient to turn the scale against the defendant.
3. Much stress was laid also in argument upon the testimony about the mutilation and changes of brands upon the animals in question, the comparative ages of different brands on the same animals, the earmarks and dewlaps, and the like; but all this only goes to affect the question of property of someone in the cattle in dispute. The state had the burden of proving that the animals in question were the property of individuals named as owners in the indictment. Its task did not end there. It was compelled to go further and prove the other essential element, that the -defendant tookthe cattle. We may safely say that there is testimony sufficient to go to the jury that the individuals named in the indictment owned the cattle described therein and that someone changed or effaced their brands and put on other brands and marks, but there is no evidence in the record that the defendant is that someone who made such changes either in person or by [625] an agent. This constitutes a hiatus in the case that is fatal to the prosecution.
4. It -will not fill the gap to show that the defendant or his employee was in the vicinity where the cattle ranged. They both had a right to be there. In State v. Odell, 8 Or. 30, it was decided that proof that the prisoner was in the same town about the time of an alleged larceny in a store is not alone sufficient to corroborate the testimony of an accomplice or warrant a conviction, and it is the duty of the court so to instruct the jury. If such circumstances will not corroborate an accomplice who made a clean breast of his connection with and the participation of the defendant in the commission of the crime charged, by a parity of reasoning similar testimony adds nothing to the state’s case against the present defendant. State v. Odell, 8 Or. 30, was approved in State v. Townsend, 19 Or 213 (23 Pac. 968), but was distinguished-in the latter case on the ground that the defendant’s presence near the scene of the crime was connected with suspicious circumstances, among which were that it was unusual for him to be in that vicinity; that he was there under an assumed name and that he was acting in concert with the other defendant, who avowed his own guilt. The Odell case was approved and followed in State v. Scott, 28 Or. 331 (42 Pac. 1), which teaches that mere opportunity to commit adultery is not sufficient to corroborate the woman who gave a detailed account of her adulterous liaison with the defendant when they were spending the day together in the woods where she affected to be hiding from her husband and the defendant was ostensibly fishing. Other parties saw them in the woods together and on the next day, according to the declarations of other witnesses, they went to Portland on the same train. Mr. Justice Mooke quotes [626] with approval this excerpt from 1 Eoscoe’s Cr. Ev., page 133:
“What appears to be required, is that there shall be some fact deposed to independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it.”
The deduction is that the mere presence of the defendant or his hired man on the range where his cattle and those mentioned in the indictment were being pastured and where both of the men had a right to be, is not a circumstance sufficient to establish the asportation of the animals included in the charge, which were all the time ranging there.
Whether or not it is a happy expression to speak of balancing the statutory presumptions arising from the presence of two or more brands upon an animal, it refers only to the proof of ownership of the cattle. In the absence of any testimony competent to show that the defendant branded any of them or aided or abetted in such branding, it cannot affect the element of asportation so requisite to constitute larceny.
It is said in 17 E. C. L., page 73:
“The general rule that the possession of stolen property is evidence of guilt is limited by the rule that to warrant an inference of guilt it must further appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused. It would be pushing the rule too far to require of one accused of a crime an explanation of his possession of the stolen property, when such possession could also, with equal right, be attributed to another. Hence the mere fact of finding stolen articles on the premises of a man of a family or in a place in which many others have free access without showing his actual conscious possession thereof discloses only a prima facie constructive possession and is not such a [627] possession as will justify án inference of guilt by reason thereof.”
Similar language is found in Underhill on Criminal Evidence (2 ed.), Section 33.
The following excerpt is taken from State v. Ford, 175 N. C. 797, 801 (95 S. E. 154, 155):
“In State v. Graves, 72 N. C. 485, Pearson, C. J., says that the presumption does not arise except when ‘the fact of guilt must be self-evident from the bare fact of stolen goods, and Hoke, J., in State v. Anderson, 162 N. C. 571 (77 S. E. 238), that it is only when he could not reasonably have got possession unless he had stolen them himself.’ The principle is usually applied to possession which involves custody about the person, but it is not necessarily so limited. ‘It may be of things elsewhere deposited, but under the control of a party. It may be in a storeroom or barn when the party has the key. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence’: State v. Johnson, 60 N. C. 237 (86 Am. Dec. 434).”
In People v. Hurley, 60 Cal. 74 (44 Am. Rep. 55), the syllabus reads thus:
“To justify the inference of guilt from the fact of possession of stolen property, it must appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused.”
In State v. Drew, 179 Mo. 315 (78 S. W. 594, 101 Am. St. Rep. 474), the defendant was charged with burglary and larceny in a store. Among other things stolen were some pieces of cloth, one of which was found in the defendant’s residence locked up in a trunk the key of which was in the custody of his daughter. The court held that:
“The finding of recently stolen articles on the premises of a man of a family, without showing his actual, conscious possession thereof, discloses only a prima [628] facie constructive possession, and is not such a possession as will justify a presumption of guilt by reason thereof.”
The same doctrine is taught in State v. Warford, 106 Mo. 55 (16 S. W. 886, 27 Am. St. Rep. 322); Cooper v. State, 29 Tex. App. 8 (13 S. W. 1011, 25 Am. St. Rep. 712); Lehman v. State, 18 Tex. App. 174 (51 Am. Rep. 298); People v. Friedman, 149 App. Div. 813 (134 N. Y. Supp. 153); Ex parte La Page (D. C.), 216 Fed. 256; People v. Wilson, 151 N. Y. 403 (45 N. E. 862).
In order to constitute larceny of the kind charged in the indictment there must be an asportation. The evidence was that all the cattle mentioned in the testimony were running at large on the public range or at least in places where cattle indiscriminately could and did go at will, and were so running at the time of the occurrence described by the witnesses. As stated, indeed, the testimony was to the effect that by far the greater part of the band where the cattle were found belonged to the defendant. One witness said about sixty were owned by another man and a few head in addition were the property of still other individuals. Under such conditions a felony is not to be imputed to the defendant respecting the animals in dispute on account of his owning the majority of the band. An inference might as well be drawn unfavorable to the owner of the sixty head. Under such circumstances, every animal is constructively in the possession of its owner and, as stated in State v. Childers, 71 Or. 340 (142 Pac. 333):
“Constructive possession cannot be in two people at the same time, whose interests are adverse to each other.”
[629] In short, there is nothing shown in the testimony that amounts to a disturbance of the constructive possession of whoever owned the cattle mentioned in the indictment. It is not shown that the defendant put his brand on the cattle or authorized it to be done. Although it is not necessary to the case, yet it is proper to state that he gave evidence of a disinterested witness to the effect that a branding iron of the defendant had been stolen from a ranch where the witness was employed and had been missed from there about a year prior to the discovery of the cattle in question. Unless there is some evidence tending to show that the defendant either branded the cattle himself or authorized it to be done as an aid to his larceny of them, the matter of finding his brand on the cattle must be laid out of the calculation in a case like the one before us. There is an utter absence of any testimony showing an asportation necessary to constitute the crime of larceny as charged in this indictment.
The court was in error in not directing a verdict for the defendant on his motion at the close of all the evidence in the case. It is unnecessary to consider the other assignments. The judgment of the circuit court is reversed and the cause remanded for further proceedings. It is possible that the prosecution may be able to make a better case at another trial, but a conviction cannot be sustained rightly on the record before us. Reversed and Remanded.
McBride, C. J., and Bennett and Harris, JJ., concur.
[630] Original opinion reversing the judgment reaffirmed -with modification March 30, 1920.