(Syllabus.)

1. Appeal and Error-Sufficiency of Evidence-Conclusiveness of Verdict. When issues of fact are determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.

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2. Larceny-Conviction for Larceny of Livestock Sustained. In a prosecution for larceny of livestock, evidence reviewed, considered, and held sufficient to support the verdict and judgment.

Appeal from District Court, Atoka County; Roy Paul, Judge.

Henry Sarten was convicted of larceny of livestock, and he appeals. Judgment affirmed.

G. W. Daney and H. H. Cook, both of Atoka, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

DOYLE, P. J The plaintiff in error, Henry Sarten, was convicted in the district court of Atoka county on information charging that in said county, on or about the 6th day of August, 1936, he did take, steal, and carry away one two-year-old red muley heifer, branded F on right hip, the personal property of Mrs. Belle Fink. The jury found him guilty and fixed the term of his imprisonment in the penitentiary at two years. Judgment and sentence accordingly.

The only question raised on this appeal relates solely to the sufficiency of the evidence to sustain the conviction.

The evidence upon which the defendant was convicted is conceded to have established the following facts:

Mrs. Belle Fink lived 11 miles southwest of Atoka, in Atoka county. The defendant lived two miles northwest of her place. Mrs. Fink had some cattle on the range in the neighborhood, among them a two-year-old muley heifer. On the date alleged she heard of its disappearance, made an investigation, and discovered that this heifer was gone. She immediately reported her loss to the sheriff. The next day the heifer was located at the Oklahoma City stockyards. She sent one of her sons after the animal, and he returned it to her.

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Bud Fink, son of Mrs. Fink, testified that he lived on th e road between the defendant's place and Atoka; that on August 6, 1936, about 8 o'clock in the morning, the defendant drove by his place with a red cow in a pick-up truck, and was driving 35 or 40 miles an hour when he passed about 30 steps from him; that, thinking it was his mother's cow, he went over to her place and asked her what she got for the heifer and she said she had not sold it; a few hours later his mother told him that her two-year-old red muley heifer, branded F on left hip, was gone.

Otis Fink, son of Mrs. Fink, testified that the next morning he loaded up some calves and drove to the Oklahoma City stockyards, and there found his mother's heifer in Jake Simm's lot. He was told there that Henry Sarten brought that heifer there about 3 o'clock the day before; that he notified the brand inspector and had the sale stopped, then went back to Atoka and had a warrant issued for the defendant. The next day he went to Oklahoma City with Ralph Ray and they brought the heifer back.

E. W. Parr testified that he was receiving clerk for the National Stockyard Company, at Oklahoma City, that he did not know the defendant, Henry Sarten, but on August 6, 1936, a man by the name of Henry Sarten delivered an animal to the Oklahoma City Stockyards. He thereupon identified the truck way-bill, introduced as Exhibit "A", showing the following recitals: "Received by Parr. Chute 2. Date 8-6 A.M. 2 1 Owner. Henry Sarten 2 P. O. Address: Atoka. 3 Truck driver. Henry Sarten. 4 License No. 783-106. 5 Transportation charges. 6 Commission firm. Jake Simms. 7 No. Head. One cattle. Brand 1 left hip. yarded in 10-89 by Parr."

H. T. Weeks testified that he was in the banking business and had been so engaged the past 17 years; that in the course of his business he was required to pass upon signatures and checks passing through his bank; that the defendant had maintained an account in his bank and he

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was familiar with his signature. Handed the waybill, his attention was called to the name of Henry Sarten thereon, and he stated that in his opinion the signature on the waybill was the signature of the defendant, Henry Sarten.

When the state rested its case, the defendant interposed a demurrer to the evidence, which was overruled. Exception.

On the part of the defense, J. D. Simms testified that he was engaged in the livestock commission business at the Oklahoma City stockyards. He further testified that any cow brought in by the defendant had been paid for, and if his firm executed any release of a cow purporting to belong to Mrs. Belle Fink, he had no knowledge of it. On cross-examination he stated:

"I was not there when the cow was brought in, if any was brought in; I don't know anything about it."

B. R. McIntosh testified that he lived at Seminole and was with B. E. King, about the 1st of August, beyond the Sarten place on the Boggy, when a man sold to the defendant a brown white-faced cow, about five or six years old.

John W. Sarten, father of the defendant, testified that his son, Henry Sarten, came to his place about the 5th of August with a brown or red cow and said he was going to the city with her, that he and his son, Henry, had for sometime been buying hogs and cattle and carrying them to the Oklahoma City market, and would make trips sometimes once or twice a week.

As a witness in his own behalf, Henry Sarten testified that he lived with his father and was engaged in trading livestock; that he did not take a cow belonging to Mrs. Belle Fink to Oklahoma City, that he took a Jersey red brown white-faced cow to the city on said date and billed her through Jake Simms. That he bought the cow west of the Twin Bridges, across the Boggy. He admitted that the signature on the waybill was his signature.

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We deem it sufficient to say that while there is some conflict in the evidence, we think that the evidence in the case is amply sufficient to support the verdict and judgment under the repeated holdings of this court, which are not necessary to cite in this opinion.

It appearing that the defendant had a fair and impartial trial, and that no error was committed prejudicial to his substantial rights, the judgment of the district court of Atoka county is affirmed.

BAREFOOT and DAVENPORT, JJ., concur.