— after stating the case: We think that the second instruction asked for was properly refused, and that, upon the evidence, the question whether there was an aspor-tation was one for the jury. The fact, if believed, that Perkins was in the habit of selling butchered cattle and going to the market accompanied by another man, the testimony that there vras some resemblance between the hide of a cow sold to a wútness and that which Page testifies he saw Langley shoot in the presence of Perkins, and the evidence of Page that Perkins threatened to shoot him (Page) if he again spoke of the killing, might have been considered, if believed by the jury, in passing on the question of the asportation, as well as the felonious intent on the pait of Perkins, and that if the jury believed that Langley shot the cow and Perkins carried away the beef, it was material testimony as to both.
But we think that the Judge below erred when, instead of leaving the jury to determine whether the defendants had removed the cow, upon a consideration of all the circumstances bearing upon the asportavit, he told the jury that, but for the testimony of Keel, he would not have submitted the question to them, but, as Keel had found no cow at the place pointed out to him by Page, the jury had. the right to infer an asportation on the part of the defendants.
The witness Keel went to the place where Page testified the cow was shot in November last, about three weeks before the Court was held in March following — not earlier than the latter part of February. The instruction given was fairly susceptible of the interpretation by the jury that the single circumstance that the prosecutor Keel failed to find any part of the carcass of a cow in Februarj’- where one wras killed about the last of November before, was of such weight that they might conclude from that detached fact that the cow shot by Langley had not only been removed, but carried away by the two defendants.
*714We cannot concur in the view that, because the jury conclude that nothing was found, after the lapse of three months since the killing, at the place where it was done, they would be justified on that finding alone (even if they discredited other testimony, already mentioned as tending, if believed, to show a felonious taking, as well as an asportavit) in returning a verdict of guilty. It was the right and duty of the jury to consider all pertinent evidence found by them to be true in reaching a conclusion, and the instruction may have misled them.
We think that a new trial should be granted to the defendants.
Error.