have been proper. No request was made in this behalf, however, In the absence of such a request, the court cannot be put in error for neglecting to give it.

It appears that the defendant was arrested by the sheriff at Poplar, on the line of the Great Northern Railway in Valley [4] county. The defendant was at the station when the train came in from the west. Having seen the sheriff on the train, he endeavored to escape his notice by running rapidly away. He was thereupon pursued and arrested. A few minutes later one Glenn Robinson was also arrested. The sheriff, being on his way to Culbertson, in the eastern part of the county, took both prisoners with him on the train and thereafter returned with them to Glasgow, the county seat. On the way to Culbertson, the defendant stated to Robinson, in the hearing of the sheriff: "I guess I'll get about ten years for this, but if I ever get out, I'll get even with the sbs." The sheriff was permitted to testify to the statement, over objection, that it did not appear to be connected in any way with the arrest of the defendant upon the charge preferred in this case, and was therefore immaterial. It is true, as counsel says, that the sheriff did not at that time inform the defendant of the charge against him; that he did not even have a warrant. Yet it does not appear that there was any other charge upon which the defendant was liable to arrest. The inference from the facts appearing in the record is that there was not. The statement was evidently induced by the arrest. Under the circumstances, it was competent to go to the jury, and it was for them to determine whether it implied a sense of resentment for what the defendant took to be an unwarranted arrest, with the attendant inconvenience resulting therefrom to him or whether it implied a consciousness of guilt. (State v. Lucey, 24 Mont. 295, 61 Pac. 994.) There was no error in the ruling.

3. While counsel admits, or rather does not question, the sufficiency of the evidence introduced by the state to make out a prima facie case of guilt, he argues earnestly that, since the evidence introduced by the defendant, explanatory of his possession of the stolen animal, is unimpeached and is worthy of credit,

the defendant was entitled to an acquittal. The circumstances pointing to defendant's guilt may be summarized as follows: The home of defendant is in Valley county. For two months prior to the 10th of July, 1911, he had been working on a ranch near Gillette, Cook county, Wyoming. About July 15th he was seen at Gillette by the witness Sullivan, who then had the horse picketed on some vacant lots adjacent to his residence. The saddle was in his barn. During the night the defendant disappeared, as did also the horse and saddle. Sullivan did not thereafter know of their whereabouts until he learned through information obtained from the sheriff of Valley county, Montana. As already detailed, he and the sheriff found the horse in the possession of George Kirn, and the saddle in the possession of the brother, Albert, in the early days of August. At that time the brand on the horse had been vented by a bar run through it. This had been done by the defendant at Kirn's request at the time the sale was made to him. It bore evidence, also, of having been altered prior to this time, and after it had disappeared from the possession of Sullivan. No explanation of this was made by the defendant or anyone else. To this may be added the conduct and declaration of the defendant at the time of his arrest. The defendant undertook to explain his possession of the horse by his own testimony and that of one Ottenstror. The two had gone together from Valley county to Gillette in April or May, 1911. Both told the same story, viz., that they left Gillette about July 10, making their way to Billings, Montana, on freight trains, spending two days on the way; that two days later they went to Miles City, Montana, traveling as before; that the defendant, about August 1 purchased the horse and saddle for $125 from some person he did not know; that Ottenstror also purchased a horse; and that the two then traveled across the country on horseback to Valley county to Kirn's place. The defendant stated further that he sold the horse and saddle to Kirn on the day after his arrival, and thereupon, having started for Culbertson, was arrested at Poplar. According to the statement of both witnesses, they made their purchases at a livery barn in Miles City. They both knew the name of the proprietor.

Several persons were present at the time; some of whom were known by name to the defendant. No witness from among these persons was called to corroborate the story told by them. That the horse was stolen from Sullivan by someone does not admit of doubt. The mere possession of property by a defendant soon [5] after it has been stolen is not sufficient of itself to justify his conviction. (Territory v. Doyle, 7 Mont. 245, 14 Pac. 671; State v. Sullivan, 9 Mont. 174, 22 Pac. 1088.) Yet when this fact is supplemented by circumstances which, left unexplained, tend to show that the possession is felonious, the burden is then cast upon the defendant to adduce evidence to rebut the prima facie case thus made out against him. If the evidence adduced by him is satisfactory to the jury, or sufficient to raise in their minds a reasonable doubt of his guilt, he is entitled to an acquittal. In a given case, the explanatory evidence may be so clear and satisfactory as to justify the court in advising or directing an acquittal. But, speaking generally, the evidence in such cases presents a question of the credibility of the testimony of the defendant himself or of the witnesses testifying in his behalf, which it is the exclusive province of the jury to determine. It will not do to say that the court or jury must accept the explanatory statement of the defendant or his witnesses as conclusive. [6] Though the statements may not be directly contradicted or impeached, yet they may be inherently improbable when examined in the light of other facts and circumstances admitted or proven. (Mattock v. Goughnour, 11 Mont. 265, 28 Pac. 301; State v. Trosper, 41 Mont. 442, 109 Pac. 858; Quock Ting v. United States, 140 U. S: 417, 35 L. Ed. 501, 11 Sup. Ct. Rep. 733; 25 Cyc. 138; 12 Cyc. 486.) It is true, as counsel says, that the statements of the defendant and Ottenstror as to the purchase in Miles City are not contradicted by the statement of any other witness. Yet the fact that Ottenstror was defendant's intimate and companion throughout, that no other witness was produced to testify as to their presence in Miles City and the purchases which they claim to have made there, and that defendant's conduct at the time of his arrest was such as to justify an inference of conscious guilt on his part, so far discredited these statements

as to warrant the jury in disregarding them if they did not believe them. The demeanor of the witnesses in delivering their testimony may have been such as, in the judgment of the jury, rendered them unworthy of credit.

Some reference is made by counsel to the severity of the penalty imposed by the district judge. This feature of the case cannot be considered by this court. If defendant has suffered wrong in this behalf, he must apply for relief to the executive department of the government, which alone is vested with power to grant a commutation of sentence or a pardon. The judgment and order are affirmed.

Affirmed.

MR. JUSTICE SMITH and MR. JUSTICE HOLLOWAY concur.

STATE, RESPONDENT, v. BOOTH, APPELLANT.

(No. 3,178.)

(Submitted October 30, 1912. Decided November 14, 1912.)

[127 Pac. 1017.]

Criminal Law-Grand Larceny-Livestock-Idem Sonans-Information Ownership Evidence-Sufficiency-Judicial No

tice-Venue-Curing Error.

Grand Larceny-Idem Sonan-Information-Sufficiency.

1. The fact that the correct name of the owner of stolen property was "Kirns" instead of "Kirn," as charged in the information, held insufficient to warrant a reversal of the judgment of conviction. Same-Ownership-Evidence-Sufficiency.

2. Evidence examined and held sufficient to justify the jury in the conclusion that ownership of certain horses alleged to have been stolen was properly laid in the complaining witness.

Same-Felonious "Taking"-Evidence-Sufficiency.

3. Defendant traded two horses to K., who, however, left them on the range instead of taking them to his home. Subsequently the former sold them to Q. and assisted the latter in "getting them in" from the range, whereupon Q. took possession of them. Evidence held sufficient to show a "taking" on the part of defendant. Same-Judicial Notice-Location of Towns-Boundary Lines.

4. The court takes judicial notice of the location of towns within the state with reference to their distance from its boundary lines.

Same-Venue-Evidence-Sufficiency.

5. Evidence held sufficient to show that the larceny of two range horses was committed in the county (bounded on one side by Canada and on another by North Dakota) in which defendant was placed on trial.

Same-Evidence-Exclusion-Curing Error.

6. Alleged error in refusing to allow defendant to answer a question was cured by the reception of evidence of another witness covering the same subject.

Appeal from District Court, Valley County; Frank N. Utter, Judge.

IRA M. BOOTH was convicted of the crime of grand larceny, and appeals from the judgment and an order denying his motion for a new trial. Affirmed.

Mr. R. E. O'Keefe, for Appellant, submitted a brief, and argued the cause orally.

Mr. Albert J. Galen, Attorney General, and Mr. J. A. Poore, Assistant Attorney General, submitted a brief in behalf of the State.

MR. JUSTICE SMITH delivered the opinion of the court.

The defendant was convicted, in Valley county, of the larceny of two bay geldings, the property of one Henry Kirns. He appeals from the judgment and from an order denying his motion for a new trial.

The evidence justifies the following conclusions of fact: That in October, 1909, Henry Kirns and the defendant engaged in a so-called horse trade, wherein Kirns traded to the defendant two bay geldings each branded "Cross U" on the right thigh. The horses were not present at the time of the trade, but were "running on the creek" in the vicinity. Kirns had known them since they were colts. After the trade, Booth said to Kirns: "When are you coming down and get your two cross U geldings?” Kirns replied: "Why, I will get them in the spring roundup." At the spring roundup he was unable to find the animals, but about September 1, 1910, he found them in the possession of one Ned Quinn. The horses had been sold to Quinn by the defend