An appeal from the Superior Court of Seminole County; Rudolph Hargrave, Judge.

David R. Climer was tried by a jury for the offense of Larceny of Dogs, convicted and appeals. On rehearing conviction is reversed and remanded with instructions to dismiss.

John Cooper, Wewoka, Kenneth Kienzle, Jr., Shawnee, for plaintiff in error.

G.T. Blankenship, Atty. Gen., Dale F. Crowder, Grayson Van Horn, Asst. Atty. Gen., for defendant in error.

MEMORANDUM OPINION

BRETT, Judge:

¶1 David R. Climer, who shall hereinafter be referred to as the defendant, was charged by information in the Superior Court of Seminole County, Oklahoma, with the crime of Larceny of Dogs. He and his co-defendant, Cecil James Driskill, were jointly charged under the provisions of 21 O.S. 1961 §§ 1717 [21-1717], 1718[21-1718]. Both defendants had preliminary examinations and both were bound over to stand trial.

¶2 The felony information was filed on October 3, 1967, and alleged that the defendants stole two female dogs, one named "Osage Rena" and the other named "Trig" from one Charlie Franklin Whitlock; and that both dogs were listed for taxation purposes in the Seminole County Assessor's Office at a value of $25.00 each. At their arraignment both defendants entered pleas of Not Guilty; and David R. Climer was granted a severance from his co-defendant and stood trial alone on the charge of Larceny of Dogs. The jury found defendant guilty and assessed his punishment at confinement in the state penitentiary for one year and one day, and payment of court costs. Judgment and sentence was imposed in accordance with the jury verdict on May 6, 1968; and from that judgment and sentence this appeal has been perfected to this Court.

¶3 On October 28, 1970, this Court entered an opinion affirming defendant's conviction, and thereafter, in accordance with the Rules of this Court, defendant's petition for rehearing was filed. Evidence was provided the Court revealing that the complaining witness had listed no dogs on either his 1966 or 1967 tax evaluation, therefore, the dogs allegedly stolen had not been listed on the County Tax Rolls of Seminole County, Oklahoma, as required by the statute. Insofar as defendant had entered his demurrer to the information the Court accepted the defendant's proof; withdrew the earlier opinion and substitutes this decision in lieu of that one.

¶4 21 O.S. 1961 § 1717 [21-1717] provides:

"All animals of the dog kind, whether male or female, which have been by their owners listed for taxation in any year, shall be for one year next subsequent to the date at which the taxes for the year for which the said animals were listed for taxation became due, considered personal property for all purposes."

¶5 Section 1718 provides for the offense of "Larceny of Dogs", but subject to the dogs having been listed for taxation purposes. It having been satisfactorily shown to the Court that no dogs, including the dogs allegedly stolen, were listed on the tax rolls, this conviction of defendant must be reversed and remanded for dismissal.

¶6 It is therefore ordered that the conviction of David R. Climer in Superior Court of Seminole County, Oklahoma, case no. 3164, shall be reversed and remanded with instructions to be dismissed.

NIX, J., concurs.

BUSSEY, P.J., not participating.