State v. Gordon.

proved of, and that he would have to remove the horses; that the animals laid there ten or twelve days, when they were removed by Matthews; that Gordon was absent from the ranch when the animals were killed, but returned a few days afterwards, when he (Miller) related the facts to him. Gordon was sworn as a witness, and testified that he was not at the ranch when the horses were killed, and had nothing to do with the killing, and never sanctioned or approved of the killing of the animals. The facts and circumstances testified to by other witnesses, both for the State and the defense, tend to show that Gordon was not at the ranch at the time the animals were killed. On the twenty-fifth day of January, 1903, the carcasses of the two animals mentioned in the information, together with those of five other horses, and that of a burro, were found in defendant's field, where Matthews stated he deposited them. Soon after it was known to Perkins and others that the animals had been killed, Matthews left that part of the country, and has not been heard from since.

When the State rested, defendant moved the court to dismiss the case for the reason that the evidence produced on the part of the State was insufficient to show that the crime of grand larceny had been committed, or that the defendant had anything to do with the killing of the horses. The motion was denied, and the defendant now assigns the ruling of the court as error. 1 The motion should have been granted. When the

State rested its case, the only proof before the court that defendant had anything to do with the animals in question was that he was seen driving them, with other horses, towards his corral, on the second day of December, the day on which Perkins turned them loose on the highway near defendant's ranch, and some six or seven weeks later the carcasses, together with those of four other horses, and that of a burro, were found in his field about a mile from the corral, and that there were signs of wagon tracks leading from defendant's stockyards to where the carcasses were lying;

State v. Gordon.

also impressions in the snow in the stockyards indicating that the animals had been killed there, and then hauled away, by means of a wagon, into the field where they were found. While these facts tended to show that the crime of malicious mischief had been committed by some person employed on, or in some way connected with the management of, defendant's ranch, they did not establish a case of grand larceny. Not only did the State fail to connect the defendant in the remotest degree with the killing of the animals mentioned, but the uncontradicted evidence of defendant's witnesses, some of whom appeared to have no personal interest whatever in the result of the case, affirmatively shows that he had nothing whatever to do with the killing of the animals. Neither did he have any knowledge of such killing until several days after it occurred.

2

The court gave the jury the following instruction: "If you believe from the evidence, beyond a reasonable doubt, that the defendant did not personally take and steal the property described in the information, yet, if he aided and abetted in its commission or if he was not present at its commission, yet advised or encouraged its commission, then he would be as guilty as those who in fact did so commit the crime under such advice or encouragement, if in fact such crime was committed." Defendant excepted to this instruction, and now assigns the giving of it as error. The instruction, as an abstract proposition, is erroneous; but even if the principles of law had been correctly stated therein, they would have no application to the facts in this case. We have made a thorough examination of the record, and fail to find a scintilla of evidence that tends to show, or from which an inference can reasonably be drawn, that defendant ever advised, or in any way abetted in the commission of, the killing of the animals mentioned. The fact that the animals were killed in the defendant's stockyards, and the carcasses afterwards removed and deposited in an obscure corner of his field, a mile distant, is not sufficient

3

State v. Gordon.

to support a finding that he aided, abetted, or advised the commission of the crime, especially in view of the positive and uncontradicted testimony of defendant and other witnesses, which shows that he had nothing whatever to do with the killing of the horses. The rule is well settled that instructions should be confined to evidence produced at the trial. "It is erroneous to give

instructions based on a state of facts which there is 4 no evidence tending to prove, or which the undis

puted evidence shows does not exist, and it makes no difference that such instructions contain correct statements of the law." 1 Blashfield, Inst. to Juries, 86, and cases cited; Sackett, Inst. to Juries, 82.

Not only did the court err in giving the foregoing instruction, but it was error to submit the case at all

5

to the jury. As was said by the court in the case of State v. Seymour, (Idaho) 61 Pac. 1033: "This is not a case where the evidence is conflicting. There is an absolute lack of evidence to sustain the verdict. In such a case the jury cannot arbitrarily ignore the evidence, when there is no conflict and the witnesses are unimpeached. If the jury could do that, it could find the defendant guilty without any evidence, and thus violate the well-established rule that a defendant cannot be convicted except upon evidence that establishes his guilt beyond a reasonable doubt. Any other rule would make the jury the arbitrary judges of the guilt of the defendant, irrespective of evidence produced at the trial."

6

The case is reversed. The State having failed to make out a prima facie case against the defendant, and as it appears from the record that there is no probability that it will be able to produce other or different testimony from that produced at the trial now under consideration, we are of the opinion that the case should be dismissed, and the defendant, if in custody, discharged. It is so ordered.

BASKIN, C. J., and BARTCH, J., concur.

Brooks v. W. U. Tel. Co.

RICHARD S. BROOKS and BIRKETT B. BROOKS, Copartners, Doing Business as R. S. BROOKS & SON, Respondents, v. THE WESTERN UNION TELEGRAPH COMPANY, a Corporation, Appellant.

No. 1539. (76 Pac. 881.)

1. Telegrams: Failure to Transmit: Law of the Case: Appeal: Second Appeal.

A decision on appeal becomes the law of the case as to all questions of law again presented on a retrial.

2. Same: Damages: Evidence: Sufficiency.

In an action against a telegraph company for negligent failure to send certain telegrams relative to a sale of horses, evidence held sufficient to show, on the question of damages, that the party in charge of the horses, on failing to receive the expected telegram, used his best judgment in disposing of the animals, and exercised due diligence in his endeavor to obtain the highest and best price under the circum. stances.

(Decided May 21, 1904.)

Appeal from the Second District Court, Weber County. -Hon. H. H. Rolapp, Judge.

Action to recover damages sustained because of the failure and neglect of the defendant company to send and deliver certain telegrams which were delivered to it by plaintiff for transmission. From a judgment in favor of the plaintiffs, the defendant appealed.

AFFIRMED.

George H. Fearons, Esq., and Messrs. Rogers & Street for appellant.

1

Brooks v. W. U. Tel. Co.

Messrs. Henderson & Macmillan for respondents.

BARTCH, J.-This action was brought to recover $562, as damages which the plaintiffs claim they sustained because of the neglect and failure of the defendant to send certain telegrams which were delivered to it, and the charges for sending them paid for by the plaintiff B. B. Brooks. The telegrams were delivered to the defendant's agent at Ogden, Utah, and were to be sent to Green River, Wyo. They referred to a sale of horses. The case has been twice tried, and each trial resulted in a verdict and judgment in favor of the plaintiffs for $562, the amount of damages claimed. So the case has been twice appealed. It was before us the first time at the February term, 1903, when we decided all the material questions of law then and now presented, and the decision is reported in 26 Utah 147, 156, 72 Pac. 499. The former decision therefore becomes the law of the case as to all questions of law again presented. Then, as now, it was shown by the evidence that the horses in question, at the time the sale was bargained for, were at Green River, and were to be delivered to the purchaser upon his arrival at that place from Ogden, if satisfactory to him. The party in charge of the animals, upon failing to receive any telegram from his partner at Ogden concerning the transaction, after repeated inquiries therefor of the defendant's agent at that place, sold them to another party at Green River. Concerning the sale thus made, the evidence in the record on the former appeal failed to show that the horses were sold for the best price obtainable, under the circumstances, by the exercise of reasonable diligence, or to show any necessity for disposing of the horses before the time of the arrival of the purchaser from Ogden. The absence of such evidence rendered the judgment, which was for more than nominal damages, erroneous, since we decided and held: "Where a telegraph company's failure to deliver messages resulted in the addressee's failure to sell certain property