¶1delivered the opinion of the court.
¶2By the second instruction the jury were informed that if *954they believed the cow alleged to have been stolen was killed, and any part of the beef of said cow was found shortly after-wards in the possession of the defendant, or that the hide of the cow was traced to his possession, or that defendant’s wagon was used with his knowledge in hauling said beef to his smoke-house, and the defendant’s possession of said beef or hide, or the use of his wagon and team was not explained by the whole evidence to their satisfaction, then they were warranted in finding the defendant guilty. This was error. While it is difficult to conceive that the jury could have found the fact to be that the team and wagon of the defendant was used in hauling the beef to his house, unless they also believed that the beef found in his possession was a part of the cow said to have been stolen, yet, by the instruction, it was assumed that they might find indifferently either one of these facts without the other, and upon this hypothesis they were told that either fact so found would warrant a verdict of guilty.
¶3. If the only incriminating fact against the defendant believed by the jury was that his wagon had been used with his knowledge in hauling to his smoke-house the beef of the cow which was killed, this would not have authorized a verdict of guilty. The defendant may have known that his wagon was used in hauling the beef without having also known that a larceny of the cow had been committed, in which event he would not be guilty of any offence whatever, or he may have known that his wagon was so used to haul the beef of which the larceny was at that time completed, in which event he would be guilty of receiving stolen goods knowing them to have been stolen and not of larceny.
¶4By the first instruction it is declared that it is larceny to kill a cow with intent to appropriate it to the use of the trespasser without the consent of the owner. This instruction, as was declared in the recent ease of Barnes v. The State, ante, p. 355, is erroneous in this that it excludes the necessity for an asportation of the property to constitute larceny. As there *955is no doubt, in this case that there vfas an asportation, this error would not result in a reversal, but we again call attention to it that it may be avoided in future cases.
¶5Judgment reversed.