the court, or judge thereof in vacation, may grant the relief upon the application made within a reasonable time, not exceeding six months after the adjournment of the term."

Chapter 4, entitled "City Courts," which contains sections 1700 to 1736, inclusive, of the Compiled Laws of Utah 1917, provides for the creation of city courts, defines the qualifications and terms of office of the judges of that court, the jurisdiction of such courts, and contains other provisions as to the machinery of the court. No provision is made therein for any "terms" of court. Section 1729 of that chapter, relating to rules of practice, reads as follows:

"The sections of the Code of Civil Procedure, and the amendments thereto, relating to the rules of practice and mode of procedure in the district court, and providing for provisional remedies, and prescribing the practice and procedure in special proceedings, and all the laws of this state, except as in this chapter otherwise provided, are applicable to the city court, the necessary changes and substitutions being made herein. In order that the powers, rules of practice and mode of proceedings of the city court shall conform as nearly as possible to that of the district court, as the same are, or may hereafter be, prescribed by law, all those sections of the Code of Criminal Procedure, and the amendments thereto, relating to the trial of criminal actions in justices' courts, and the procedure and practice of committing magistrates, are likewise made applicable to the city court, the necessary changes and substitutions being made therein."

FRICK, J. I concur. The question is not one of purely equitable cognizance, as respondent's counsel in his brief seems to assume. Under the statute in question here, the application to obtain relief from a default judgment must be made in the original action and upon the grounds stated in the statute. The right to thus proceed must of necessity be made in accordance with the statutory provisions as pointed out by Mr. Justice GIDEON. That, however, does not preclude the respondent from instituting an independent action in equity to enjoin the enforcement of the judgment or to obtain relief if the facts and circumstances justify such an action as pointed out in the case of McMillan v. Forsythe, 47 Utah, 571, 154 Pac. 959.

Although Comp. Laws 1917, §§ 6619, 7023, give district court discretionary power to allow motion for new trial to be made in civil cases and filed after the time limited by the Code, section 9200 limits application for new trial in a criminal cause to written notice served within five days after verdict, and in such cases the court is without discretion to extend such time beyond such limit, procedure in criminal cases being limited to that prestanding section 7892 provides that penal statscribed in the Code by section 8547, notwithute shall be liberally construed. 2. CRIMINAL LAW

1081-APPEAL-TIME

OF NOTICE-ENTRY OF JUDGMENT.

There are no provisions in that chapter defining the time or power of the city court to relieve a litigant from a judgment entered against him by inadvertence or excusable neglect. The provisions of section 6619 are therefore applicable and controlling and limit the power of the city court to relieve a party from a judgment or from proceedings taken against him through inadvertence or excusable neglect. In our opinion the provi-day defendant served and filed his notice of sions of such section are controlling and conclusive against the contention of the respondent herein. The following Utah authorities are of interest as bearing upon the question here determined: Elliott v. Bastian, 11 Utah, 452, 40 Pac. 713; Lees v. Truman, 19 Utah, 481, 57 Pac. 411; Luke v. Coleman, 38 Utah, 383, 113 Pac. 1023, Ann. Cas. 1913B, 483; McMillan v. Forsythe, 47 Utah, 571, 154 Pac. 959.

It follows that the judgment of the district court must be reversed. Such is the order. The cause is remanded to the district court of Salt Lake county, with directions to reinstate the same and to issue the writ as prayed for by the appellant herein. Costs to be taxed against respondent Cutler.

CORFMAN, C. J., and WEBER and THURMAN, JJ., concur.

Where a verdict of guilty was rendered May 17, 1918, and judgment upon the verdict was not rendered and entered until the 21st of the following September, and on the sam appeal to the Supreme Court, the notice was in time, being within two months after the entry of judgment appealed from, in view of Comp. Laws 1917, § 9209.

3. CRIMINAL LAW
LARCENY
~1159(5)
55-OWNERSHIP OF PROPERTY-CON-
FLICTING TESTIMONY-CONCLUSIVENESS OF
JURY'S FINDING.

In a prosecution for grand larceny, although evidence of state's and defendant's witnesses was in direct conflict upon the issue of ownership, held that there was evidence sufficient to justify conviction, and the Supreme Court has no power to disturb the jury's finding thereon.

4. CRIMINAL LAW 390-INTENT OR MOTIVE-DEFENDANT'S BELIEF OF HIS OWN

ERSHIP.

In a prosecution for larceny of a steer, the court's refusal to permit the defendant to tes

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(182 P.)

Conway v. Clinton, 1 Utah, 215; People v. Monk, plication to our statutes, and that our stat8 Utah, 35, 28 Pac. 1115.

utes are to be more liberally construed with a view of effecting their objects and to promote justice, still, we think, in the absence of some express provision in the Code of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Criminal Procedure to the effect that the [ mony further shows that the defendant, on courts may exercise some discretionary pow- about November 17, 1917, notified the sherer in extending the time within which a iff of Iron county of his intention of driving notice of motion for new trial may be made, his stock into Nevada for the purpose of the strict letter of the statute must be ad- grazing them there, and for that reason rehered to, and therefore it is beyond the quested the sheriff to make an inspection so power of the courts to extend the time lim- that his animals might be driven out of ited by section 9200, supra. We think that Utah after due inspection as required by not only the best interests of the criminally law. The sheriff, on inspecting defendant's accused but of society and the state demand stock for that purpose, discovered that the prompt attention to criminal procedure and animal in question was not branded, bore final and effective determination of the cas- earmarks not claimed by defendant, and es in which parties are charged with crime. therefore ordered the defendant not to reUnder our statutes, in criminal cases, the move it until further investigation could be grounds upon which a new trial may be ap- made. The attention of Mr. Adams, the complied for are clearly expressed, and we can-plaining witness before the magistrate, was not conceive how in any case the interests called to the animal, and he made claim of the accused and complete justice will not that the animal had been stolen, and that be best subserved by requiring him to act it belonged to him. At the trial much teswithin the time expressly limited by the timony of a conflicting nature was given as statute. Davis v. State, 31 Neb. 240, 47 N. to the identity and the ownership of the anW. 851; Hubbard v. State, 72 Neb. 62, 100 N. | imal. The witnesses for the defendant tesW. 153, 9 Ann. Cas. 1034; Ward v. State, 171 tified that they were acquainted with it, Ind. 565, 86 N. E. 994; State v. Maddox, 153 and that it was owned by the defendant. Mo. 471, 55 S. W. 72; State v. Tolla, 73 N. J. The witnesses for the state, directly to the Law, 249, 63 Atl. 338; State v. Hayden, 131 contrary, testified, it was owned by Adams. Iowa, 1, 107 N. W. 929. The jury were permitted, under the instructions of the court, to view the animal. After doing so and considering the testimony, by their verdict they evidently believed the state's witnesses. We have no power to disturb their finding in that regard, even were we disposed to do so. As we view the testimony, the contention made that the evidence is insufficient to justify the verdict is wholly untenable.

[2] However, the state's motion to dismiss the appeal must be denied. The record shows that while the verdict of conviction by the jury was rendered May 17, 1918, the judgment upon the verdict was not rendered and entered until September 21, 1918. On the same day, September 21, 1918, the defendant served and filed his notice of appeal to this court. As provided by Comp. Laws 1917, § 9209:

"All appeals in criminal cases must be taken within two months after the entry of the judgment appealed from."

Therefore this appeal was taken in time. [3] As to the merits of the appeal: It is first contended by the defendant that the

[4] The defendant next complains that the trial court committed errors in the admission and exclusion of testimony over defendant's objections. Many of the assignments made by the defendant are wholly without merit, and we deem it unnecessary to discuss them. Counsel for defendant suggests in his printed brief and argument that

they may be grouped in one discussion, and then proceeds to argue that the trial court committed error in the exclusion of certain

evidence is insufficient to sustain the verdict. The testimony shows that the defendant, a resident of Cedar City, Utah, for about 25 years previous to the offense charged had been engaged in farming and stock rais-testimony tending to show that the intent of ing.

He had ranged his stock on what is known as the Cedar Bottoms in the winter time and on the Cedar Mountains in the

summer time. He owned two ranches, one

defendant in claiming possession and ownership of the animal in question was under intent to steal the animal. In the course of a bona fide claim of right and without any the trial the following questions were propounded to the defendant in that regard:

"Q. Did you on that occasion when Mr. Fife (the sheriff) came there, on the Antelope road, to inspect your cattle-did you make any effort to rush the cattle by or crowd them by rapidly, so as to prevent a full opportunity, his opportunity to inspect them?"

on the Cedar Bottoms and one on the Cedar Mountains, and moved his stock from ranch to ranch for the purpose of feeding and grazing them. The complaining witness, Hugh L. Adams, also owned a ranch at Cedar Bottoms adjoining the defendant's ranch. Witnesses for the defendant testified that in the spring of 1915 a bull calf was born from one of defendant's cows at his Cedar "Q. Did you honestly believe that stag to be Bottoms ranch; that it was kept there and your property and your animal that you raised was neither branded nor marked. Later "Q. Did you honestly believe that stag at this calf, after being kept for a while for that time to be your property? And do you stock-breeding purposes, was castrated and yet honestly-do you still honestly believe that turned out on the open range. The testi- to be your property and your steer?"

as you testified?"

(182 P.)

The first question above was objected to by the state on the ground that it was leading and suggestive, and each of the other questions on the ground that they were selfserving declarations. The objections were sustained by the court, and the defendant was not permitted to answer.

We think the trial court's refusal to permit the defendant to testify as to his intent and belief in possessing and claiming the animal in question was clearly error. Under the facts and circumstances as shown by

this record the defendant should have been

permitted to testify that he believed the animal he was accused of feloniously stealing and taking away was his property and his possession a rightful one.

Under our Penal Code (Comp. Laws 1917, § 7908) "in every crime or public offense, there must exist a union or joint operation of act and intent, or criminal negligence."

If the defendant honestly believed the animal in question to be his own property, that it was his intent and purpose of possessing and driving it into Nevada as such, then, even though the testimony conclusively shows he was mistaken and the animal was the property of another, he had no motive or purpose to commit crime, and the question as to what the defendant honestly believed and intended was one of fact to be submitted to and determined by the jury. In Conway v. Clinton, 1 Utah, 215, an early civil case, where one of the issues was the malice of defendant who was charged with maliciously and wantonly destroying the goods of plaintiff, the territorial Supreme Court held:

"Where the motive of a party is thus in issue, he may testify to it himself. If he should say his motives were malicious, it would properly inure to the advantage of the plaintiff, and it is none the less competent for him to disclaim the malice. Doubtless, a witness in thus speaking of his own motives may state as a fact that which no other witness can directly and categorically deny, but the weight of the testimony is for the jury to determine."

Then again, in a criminal case (People v. Monk, 8 Utah, 35, 28 Pac. 1115) the territorial court speaking approvingly of the rule contended for by defendant here, and quoting from Bishop on Stat. Crimes, § 132, said:

""One who, while careful and circumspect, is led into a mistake of fact, and doing what would be in no way reprehensible were they what he supposes them to be, commits what, under the real facts, is a violation of a criminal statute, is guilty of no crime.' In such a case a criminal mind and intent is wanting."

Speaking of the rights of the accused as a witness, Underhill, Crim. Ev. § 59, says:

"He must be permitted fully to unfold and explain his actions, and to state the motives which he claims prompted them. It is, with182 P.-14

in certain limits, relevant for him to state what intention was present in his mind when he participated in a transaction which is in issue."

In speaking of the rule contended for, Wharton, in his admirable work on Criminal Evidence (10th Ed.) at page 1698, where many authorities are collated and may be found, says:

*

The rule is universal that on a the accused is relevant to the issue, or whenprosecution for crime, whenever the intent of ever the intent of the accused in doing the act charged becomes material, the accused may testify as to his own motive and intent."

[5] While we must hold that the rule contended for is a proper one, and that the refusal of the trial court to permit the defendant to make answers to the questions thus propounded to him by his counsel ordinarily would be reversible error, after carefully reviewing the record before us as a whole, we are of the opinion that the defendant was not prejudiced by the rulings of the court complained of by him.

The defendant was permitted to testify at great length to his acts and conduct toward the animal, the circumstances under which it came to his possession, his reasons for claiming ownership, its physical appearance and condition, the causes therefor, and his intent and purpose in seeking to drive it from the state. Moreover, he was on other occasions during the progress of the trial permitted, without objection, to make answers to very similar questions to those of which he here complains of being denied. We quote:

"Q. Was the stag that you started from the Cedar Bottoms with the bunch of cattle, that you notified Sheriff Fife about to come and inspect, the stag that you claimed as one you had raised and believed to be yours? A. Yes, sir.

"Q. Do you still upon the inspection of the stag identify it as the one you have raised as you have testified to and the one that you believe to be yours? A. Yes, sir."

Then, again, the defendant, after being recalled by his counsel for further exami nation at the trial, was permitted to testify, without objection, as follows:

"Q. That is your ranch in the mountains. Mr. Sawyer have you ever in your life, and more especially during the year 1917, knowingly or intentionally stolen or taken any animal belonging to Hugh L Adams? A. No, sir."

The import and meaning of the defendant's testimony thus received is, to our minds, precisely the same as would have been his testimony had the court permitted him to answer the questions he now complains of being denied. He therefore suffered no prejudice.

[6] Upon the trial, the district attorney requested that the jury be permitted to view the animal in question and throw it so as to make an examination of it. Counsel for the defense objected to the jury throwing the animal or making any physical examination of it. Defendant complains that the jury was not properly admonished nor instructed before retiring. The only objection made by counsel in this regard was that the jury should not throw the animal nor be permitted to make a physical examination. After the jury had retired counsel renewed his objection in the following man

ner:

"Counsel: We object to any examination on the part of the jury of the steer in question, other than viewing it, and we except to the court's statement or instruction to the jury to the effect that they could make any examination of the steer in question that they might see fit or desire to make.

"Court: Let the record show the objection. After consideration the court will instruct the sheriff to allow the jury to view the animal, but to make no physical examination. I believe the objection is well taken. Will you go down, Mr. Fife, to them and tell them. Will that be satisfactory to you, Mr. Ryan, if I send word by the sheriff?

be by this court in the very able and exhaustive opinion written by Mr. Justice Straup in State v. Potello, 40 Utah, 56, 119 Pac. 1023. The language of the statute as there construed was held to mean that mere proof of larceny and recent possession will not make out a prima facie case of guilt. We quote from the opinion:

"We think a fair meaning of the statute is that, to make a prima facie case of guilt, the state, in the absence of other evidence, must show the larceny, recent possession in the accused, and that he failed to make a satisfactory explanation." (Italics ours.)

The effect and meaning of the statute was again before this court in a more recent case (State v. Barretta et al., 47 Utah, 479, 155 Pac. 343), and again discussed by Mr. Justice Straup, the writer of the court's opinion. It was there held, as in the Potello Case, that the provision of the statute complained of was meant for the guidance of the trial court only, in determining when a given case should go to the jury, and that the giving of the statute as a charge was an improper one. It was also there held that while possession of recently stolen property not accompanied by satisfactory explanation warrants a submission of the case to the jury, the burden, nevertheless, remains with the state to prove the accused guilty beyond a reasonable doubt. To the same effect were the opinions written by The contention of counsel at this time the same justice in State v. Converse, 40 that the jury was not properly admonished Utah, 72, 119 Pac. 1030, and State v. Bowby the court comes too late. The only ob-en, 45 Utah, 130, 143 Pac. 134. In all the jection made by counsel at the trial was ac- cases before this court it has been held that quiesced in by the court. Moreover, we possession of recently stolen property withthink the record shows that the jury was out satisfactory explanation is an inference admonished by the court and duly caution- of guilt, and constitutes a circumstance to ed not to receive any extraneous testimony be taken into consideration by the jury in while viewing the animal, substantially as arriving at a verdict. required by the statute.

"Counsel: Oh, yes. "Court: Very well. Go down and just tell them not to throw the animal, but to just view it without handling it."

[7] Defendant next assails the instructions given by the court to the jury. The court, in charging the jury, quoted the language of the statute (Comp. Laws 1917, § 8285) as follows:

"Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. Possession of property recently stolen, when the party in possession fails to make a satisfactory explanation, shall be deemed prima facie evidence of guilt."

Counsel for defense excepted to the giving of the instruction, especially the last paragraph with reference to unexplained possession of stolen property, stating his reasons to be that the last paragraph is not the law of the state of Utah, and further that this paragraph is not intended to define the crime of grand larceny, and is not within the meaning of the term "grand larceny."

The paragraph complained of certainly is the law of this state, and so declared to

The instruction complained of, standing alone, without any qualification or warning being given to the jury, that mere unsatisfactory, unexplained possession alone is insufficient evidence upon which to find a verdict of conviction, would be, in our opinion, most harmful, and warrant us in reversing the judgment as was done in the case of State v. Barretta, supra; but in the case at bar, as in the Bowen Case, supra, which was affirmed, the trial court, in effect warned the jury that mere possession and unsatisfactory explanation alone are insufficient to warrant a conviction.

After defining larceny, and giving the provision of the statute complained of, the trial court proceeded to further charge:

the burden of proof rests upon the prosecution "The court instructs you that in this case to make out and prove to the satisfaction of the jury beyond every reasonable doubt every material allegation in the information, and. unless that has been done, the jury should find the defendant not guilty.