Devine

I am not prepared to say *232 that the evidence is insufficient to justify the verdict, but I concur in the judgment of reversal because of the error in giving the instruction referred to in the opinion of Mr. Justice Sharpstein,—as to what facts are sufficient to show a larceny of lost property, — and also because of the misconduct of the district attorney in asking the defendant, upon cross-examination, certain questions, and in making a statement in reference thereto in the presence of the jury. The questions were as follows: “You know, as a matter of fact, you had been stealing his hogs . right along and, “ The only reason you have got right now for swearing that you believe that Robert Doherty had an antipathy toward you is because about six years ago he caught you dressing one of his hogs. Is n’t that the only reason?” The questions being objected to by the defendant’s attorney, they were followed by this statement, made by the district attorney: “I want to show that the only reason that the witness had for believing as he did was because Robert Doherty caught him one time killing one of his hogs. He had testified that Robert Doherty, he believed, had an antipathy against…

“ Larceny is the felonious stealing, *228 taking, carrying, leading, or driving away the personal property of another.” (Pen. Code, sec. 484.) In this case the evidence is sufficient to justify a jury in finding that appellant took and carried away the property of another; but insufficient to justify the finding that appellant feloniously stole the same. Therefore the evidence is insufficient to justify the verdict of guilty of larceny against the defendant, and for that reason he is entitled to a new trial. The evidence shows that the appellant and Robert Doherty occupy adjoining tracts of land, and that each of them keeps upon his own tract a considerable number of hogs. Appellant, wishing to sell some of his hogs, directed two men in his employment to collect his hogs in a pen or inclosure, so that he might select therefrom some denominated “ feeders,” to take and sell to a butcher by the name of Sam Bee, whose place of business was several miles distant from appellant’s farm. Out of forty or fifty-hogs in the corral, appellant, with the assistance of his son and the two men who had driven the hogs into the inclosure, selected eleven “feeders,” which were loaded on a wagon, and…