¶1Even those of the State’s witnesses who testify that the colt in controversy was the colt of Seguin’s mare state that defendant openly and publicly and at all times claimed that the colt was his property. Four witnesses for the defense, who testify that they knew Seguin’s mare and colt, testify positively that the colt in question was not the Seguin colt, but was the property of defendant. If the suit had been a civil action between Seguin and defendant as to the ownership of the colt, and a verdict had been rendered finding the ownership to have been established in defendant, we could not have set the verdict aside as being against or unsupported by the evidence.
¶2As made to appear in the statement of facts before us, the evidence is wanting in that cogency and conclusiveness essential to a conviction for theft, and the judgment is therefore reversed and the cause remanded.
¶3Reversed and remanded.
¶4[Opinion delivered November 14, 1885.]