[File No. Cr. 97.]

#### STATE OF NORTH DAKOTA, Respondent, v. OLAF SMESTAD, Appellant.

(247 N. W. 556.)

Opinion filed March 18, 1933.

*JE. G. Larson*and *Lashlcowiiz & Smith,*for appellant:

*James Morris,*Attorney General, and *Boy A. Ployhar,*State’s Attorney, for respondent.

Bibdzell, J.

The defendant was informed against for the stealing of personal property described as follows: “One black mulley steer coming three years old,” the property of Rasmus Olsberg and of the value of $70. He was convicted of petit larceny and appeals from the judgment. In this court he raises the question of the sufficiency of the evidence and complains that he did not have a fair trial. The contention that the evidence is insufficient resolves practically to the contention that the state did not sufficiently prove the corpus delicti. We will refer briefly to the condition of the evidence bearing upon this question.

Rasmus Olsberg, the alleged owner of the pioperty the defendant is charged with stealing, testified, in substance, that he had a farm in the vicinity of Kathryn, in Barnes county; that the defendant lived about a mile east and a little north of his place; that the Sheyenne River separated the defendant’s farm from Olsberg’s but that defendant also *229bad a bay field' west of tbe river and a pasture on tbe east side; that on August 3, 1931, be purchased two black steers from Mrs. Helgeson, one of them being tbe steer in question and tbe better of tbe two. He was worth $70. Mrs. Helgeson lived east of tbe defendant’s place. Olsberg took tbe two steers and put them in bis feed pen. Tbe steer in question got out about an hour and a half later and be saw him after be got out. Tbe steer went into tbe defendant’s bay field and from .there crawled through tbe barbed wire fence into tbe defendant’s pasture. Olsberg did not do anything about it for a couple of days, thinking the steer would go back home (to Helgeson’s) through tbe other fence. He inquired of Mrs. Helgeson’s boy a couple of days later as to whether the steer bad gone back home and was informed that it bad not. It was threshing time and be was busy, so be did nothing about it for a few days. Then be made further inquiry and could not find him. He learned of a truck that had gone to tbe Smestad place on Sunday and taken a load back north on Monday. He learned who drove tbe truck and inquired of tbe driver and be said be bad hauled cattle on Monday. He then went to Smestad’s place and proposed buying some cattle, mentioning a black steer, and Smestad said be bad only one black steer. He said be bad not sold any cattle lately, not since be bad traded for a tractor in tbe spring and said be bad not seen tbe black stray steer. Olsberg went back to Smestad’s place, taking two men with him, on Sunday about tbe 16th or 17th of August. On this occasion Smestad said be bad hauled a load himself, and that be bad bad two black steers. On cross-examination Olsberg testified that tbe man who hauled tbe truck load from tbe Smestad place said be hauled a mulley black steer that weighed about 1100 pounds.

H. M. Hanson testified that be was with Olsberg when be went to tbe defendant’s place on tbe second occasion in August, and when Olsberg confronted tbe defendant with bis former statement that be bad not hauled any cattle tbe defendant explained that there was a mortgage on tbe cattle and be didn’t want to say anything about it. When Olsberg accused the defendant of shipping bis black' steer Smestad said, “No, I shipped my black steer.”

Oscar Lee testified that tbe steer in question never went back to tbe Helgeson place and that on tbe Monday following .the 3rd of August *230be saw a truck go past tbe Helgeson place about six o’clock in tbe morning. He did not know wbat was in tbe truck.

T. Rustad, wbo was employed by tbe Agricultural Credit Company of Valley City, testified that be checked Smestad’s cattle on June 24, 1931, for tbe purpose of a chattel mortgage and found only one black steer at that time.

Rudolph Miller, wbo hauled tbe cattle for Smestad on August 10th, testified that in tbe load there was one black steer without horns, weighing between 1000 and 1100 pounds.

Mrs. Andrew Mennis testified that on a Friday in August she was near tbe fence on tbe east side of Smestad’s pasture and she saw a black steer that was away from tbe other cattle in tbe pasture, standing alone and bellowing. She lived just a little ways from there. She beard tbe same noise on Saturday, but not after that.

Tbe evidence very clearly establishes tbe deprivation of tbe property of tbe complaining witness, and there is ample evidence to establish that a strange animal was seen in tbe pasture of tbe defendant at tbe time and to identify this animal as belonging to Olsberg and as being tbe one hauled away and sold by tbe defendant on tbe following Monday. True, tbe defendant contradicts this evidence, but we can not say that it is insufficient to convince tbe jury beyond a reasonable doubt that tbe identical animal owned by tbe plaintiff was in fact taken and sold by tbe defendant. Hence, tbe elements of tbe corpus delicti are established in this case. See 16 C. J. 771. For cases pro and con, dealing with tbe identity of animals alleged to have been stolen, see 36 C. J. 906, 907, § 486. As to tbe sufficiency of tbe evidence, generally, to establish corpus delicti in larceny, see note in L.R.A.1916B, 846. We are of tbe opinion that tbe evidence is sufficient in tbe instant case.

Tbe contention that tbe defendant did not have a fair trial is based upon evidence which was introduced by tbe state to rebut character evidence offered by tbe defendant. Tbe evidence complained of was not objected to at tbe trial. We have nevertheless read tbe testimony which, it is contended, resulted in undue prejudice to tbe defendant, and we can not see wherein it militated against a fair trial. In so far as specific instances were used to rebut evidence of good reputation, they were *231used as stated above without objection by tbe defendant and went to tbe jury with tbe defendant’s explanation of tbe circumstances.

Finding no error in tbe record, tbe judgment appealed from must be affirmed. It is so ordered.

Nuessle, Cb. J., and Buexe, CheistiaNSON and Bube, JJ., concur.