#### STATE OF NORTH DAKOTA, Respondent, v. CLIFFORD A. McCARTY, Appellant.

(194 N. W. 335.)

jury —. objection to panel because dismissed and recalled held without merit.

In a prosecution for the larceny of certain caires it is *held,*for reasons stated in the opinion,

1. That the objection made to the jury panel because it was dismissed and recalled, is without merit.

Criminal law — testimony of witnesses whose attendance could not be procured, as given at former trial, properly admitted.

2. That the testimony of two witnesses, whose attendance could not he procured, as given at a former trial, was properly admitted.

Criminal law — admission of rebuttal testimony concerning other crimes of defendant held not erroneous.

3. That the admission of certain rebuttal testimony concerning the commission of other larcenies was not erroneous.

Opinion filed June 1, 1923.

Criminal Law, 16 C. J. § 1170 p. 603 n. 83, 84, 85; § 2116 p. 839 n. 76; Juries, 35 C. J. § 404 p. 363 n. 85.

Note. — As to the effect of admissibility in criminal trial of testimony given upon preliminary examination by witness not available at the time of trial, see note in 25 L.R.A. (N.S.) 868.

On admissibility of evidence given on a former trial or preliminary examination, see note in 140 Am. St. Rep. 775.

See also 8 R. C. L. 88; 3 R. C. L. Supp. 542; 4 R. O. L. Rupp. 520.

In District Court, Hettinger County, *Nuessle,*J.

Prosecution for grand larceny of certain calves.

Defendant bas appealed from judgment of conviction.

Affirmed.

*H. E. Haney,*for appellant.

*J. P. (Jain,*special prosecutor.

Per Curiam opinion.

Pee Cubiam.

This is a prosecution for the grand larceny of certain calves. In June, 1920, a jury in Stark county returned a verdict of *913guilty against tbe defendant. Upon appeal from tbe judgment of conviction tbis court, in April, 1021, granted a new trial for errors in instructions. State v. McCarty, 47 N. D. 523, 182 N. W. 754. The new trial was bad in Hettinger county in December, 1921. Again tbe jury found defendant to be guilty. Defendant bas appealed from tbo judgment of conviction. Tbe facts bave been set forth in tbe former opinion. They are substantially tbe same in tbe present record. In general, tbe basis of tbe prosecution is tbat defendant arranged witli two confessing accomplices to steal certain unbranded calves on a ranch North of Belfield, North Dakota, and to transport tbe same about 18 miles distant southwest to defendant’s ranch; that, pursuant to tbis arrangement, six calves, on November 16th, 1918, in tbe nighttime were 1 aben and transported to defendant’s ranch; tbat defendant received the same and paid to these parties $100 for their services. Defendant maintains tbat there is no corroboration of tbo testimony of tbe two parties who took these calves. Tbis contention bas been answered by tbe former opinion of tbis court. State v. McCarty, supra. Defendant made objection to tbe jury panel. From the record it appears tbat tbe trial court dismissed tbe jury, but within an hour, upon learning tbat tbis court bad designated Judge Nucssle, now an associate justice of tbis court, to try the ease, recalled tbe jury. The court bad not adjourned. From tbe record it further appears tbat both parties passed peremptory challenge and stated to tbe court tbat they were satisfied with tbo jury. This objection, accordingly, is without merit. In tbe record it appears tbat tbe testimony of one Deeper and Jacobson, given at tbo former trial, was admitted in evidence and read to tbe jury. Further, it appears tbat Deeper bad been sick in bed for some time and bis attendance could not be procured; tbat attempts were made to serve subpoena upon Jacobson but be could not be found. There was further testimony to tbe effect tbat tbis Jacobson was in Montana at tbe time of tbo trial. AYe aré satisfied tbat tbe court properly received tbis evidence. Felton v. Midland Continental R. Co. 32 N. D. 223, 237, 155 N. W. 23; State v. Moeller, 24 N. D. 165, 138 N. W. 981; see note in 25 L.R.A.(N.S.) 868. Tbe court also received in evidence a ledger sheet of a bank which showed tbat on November 18th, 1918, a check for $100 was charged to bis account. Tbis exhibit bad slight evidentiary value but no prejudicial error occurred in its admission.

*914Complaint is made of tlic instruction of the court that the possession, by the person charged, of stolen property, recently after the theft, if unexplained, is a circumstance tending to prove his guilt. This instruction considered with the rest of the court’s instructions is well within the rule announced in the former opinion. State v. McCarty, supra.

During the course of the trial, defendant, who had previously testified in his own behalf that he received this property innocently, was asked on cross-examination, whether one of the alleged accomplices had stolen a gray horse and brought it to him. Some other similar questions were propounded involving the commission of other larcenies; all of which defendant denied. On rebuttal one of these alleged accomplices testified that defendant had him steal a black horse and some other horses. The trial court admitted this testimony on the theory that it was permissible to show a series of transactions, for the purpose of establishing knowledge or intent of any particular transaction. In his instructions to the jury, the court limited the consideration of this testimony to the establishing of a felonious intent or motive, and for purposes of throwing light upon the knowledge, intent, and purpose of defendant. In view of the relations as testified between the accomplices and the defendant, this testimony was admissible, in our opinion, to show guilty' knowledge and intent, and thus to rebut the defendant’s testimony. No error occurred in the court’s instruction in regard thereto.

Upon the entire record we are satisfied that defendant was accorded a fair trial without occurrence of any prejudicial error. Four years have elapsed since the commission of the offense. Defendant has been accorded every opportunity to establish his innocence. The judgment, accordingly, should be, and is, affirmed.

BroNSON, Oh. J., and Birdzell, Burr, and Joi-iNsoN, JJ., concur;

Justices Nuessle and ChristiaksoN, being disqualified, did not participate; Honorable A. Gr. Burr, Judge of Second Judicial District, sitting in their stead.