(after stating the facts.) Under our statute, one who obtains personal property from another by any false pretense, intending to defraud, upon conviction thereof, shall be deemed guilty of larceny. Sec. 1689, Kirby’s Digest. See also 1 Wharton, Cr. Law, 916; 1 Bish. Cr. Law.
We are of the opinion that, when all the facts and circumstances disclosed by the evidence in this record are considered, it was a question of fact for a jury to say, under proper instructions, as to whether the two men mentioned had not entered into a conspiracy to defraud appellant by falsely pretending that the younger was a liveryman and driver for the elder, and that the-elder was a doctor who could and would, for the consideration named, cure the appellant of the malady with which he was afflicted. It was a question for the jury as to whether these two men were making such fraudulent representations of existing or past facts, knowing same to be false, as were calculated to induce appellant to deliver to them his mule.
The facts are set out in detail, and they speak for themselves. The younger man represented that the elder was a doctor whom he had first met at Marshall. That he was employed by the doctor to furnish him conveyance to the four patients he had in this State. He represented the doctor as a millionaire who had the money in bank to insure a cure, that he had taken the doctor to see three of his patients, that he had taken three ribs out of one, was going to operate on another for abscess of the liver, and that all the time he gave a written guaranty. The elder man “talked about medicine all the time,” and said “that doctoring had advanced to that stage that he did not have to doctor by symptoms any more, that he could tell what was the matter.”
*517The appellant was so badly afflicted with rheumatism that he had not been able to work at all during the summer. The two men mentioned went to appellant’s home, and through the above and other representations, as detailed in the statement, induced appellant to deliver to them his property upon the assurance that unless he was completely cured within sixty days the amount he had paid, the balance of the price of the mule surrendered should be returned -to him. After they had thus obtained his property, they left his home Monday morning, August 25, and were soon thereafter arrested. The sheriff believed that not only the mule they had procured from appellant was stolen property, but also the two horses and the buggy in their possession. The young man was lodged in jail, the elder escaped. The sheriff “wanted to catch him,” thus showing he had gone.
The testimony of Brandt should have gone to the jury for its consideration. It tended to show that on the day the two men left appellant’s home Brandt met two men of the description of the two who had secured the mule from appellant. The mule they were leading answered the description of the mule taken. This testimony tended to show that these men were driving at an unusual speed, and were cutting the telephone wire as they went. If the men seen by Brandt were the men w'ho had obtained appellant’s mule, as this testimony tended to prove, the fact that they were cutting the telephone wire, and were driving at an unusual speed after doing so, were circumstances to be considered by the jury. Such circumstances, in connection with the other facts in proof, tended to show that the men were conscious of having committed the crime, and were endeavoring to make their escape. The testimony, because of a lack of more complete identity, was not of a very strongly -criminatory nature, but it was a circumstance nevertheless tending to identify them and to show that they were conscious of having fraudulently deprived appellant of his mule, and were trying to cut off telephone connection, so as to enable them the more successfully to make their escape.
Without commenting -more at length upon the testimony, it suffices to say that it was for the jury to say, from the nature of the representations themselves and the other circum*518stances in proof, as to whether such representations were made in good faith and for an honest purpose, or whether they were made to defraud appellant of his mule. While fraud will not be presumed, and while the burden is on him who alleges it to prove same by clear and satisfactory evidence, still it need not be shown by direct or positive evidence, but' may be proved by circumstances. Phelan v. Dalson, 14 Ark. 79.
We do not consider the circumstances in this case so slight, and of such equivocal and unsatisfactory character as to warrant the court in taking the question of fraudulent pretenses from the jury. Bank of Little Rock v. Frank, 63 Ark. 16. It was for the jury to say whether an itinerant millionaire doctor of the “all cure or no pay” variety really existed in this case, and whether the representations which he and his boosting companion made of present and past facts were known by them at the time they made them to be false, and whether the^ made them for the felonious purpose of depriving appellant of his property.
The question of tender was not raised in the pleadings, and does not arise in casé like this. Here the party who obtained possession of the mule from appellant had transferred same to third parties. These parties are being sued for the possession, and they set up ownership in their own right as innocent purchasers. They do not concede, but deny, that appellant is the owner. The only evidence in the record concerning this is by appellant who says: “They made me a proposition, and said if I would pay back the twenty-two dollars, and give them twenty-five dollars, they would get the mule back if the young man would accept it.” Under such circumstances tender to appellees was not a condition precedent to the 'right to maintain the suit.
If “property has been obtained from the owner by a felonious act, his unqualified ownership is not in the least changed, and he may peaceably take it in whose hands soever he may find it.” Phelan v. Dalson, supra.
The appellant did not offer to prove that the grip, found in possession of the two men when arrested, contained articles that would tend to show that the men had perpetrated a fraud on appellant in getting from him the mule. In the absence of *519such offer by appellant, the ruling of the court in refusing to allow witness Hatley to testify as to the contents of the grip was not error.
The ruling of the court in excluding the declarations of the young man in jail was for the same reason correct.
For the error of the court in directing a verdict for the appellees the judgment is reversed, and the cause is remanded for new trial.
Battle and Hart, JJ., dissent, on the ground that the court did not err in its ruling on the facts.