Meehan v. Great Northern R. Co. 13 N. D. 443, 101 N. W. 183; Adams v. Bunker Hill & S. Min. Co. 12 Idaho, 637, 11 L.R.A. (N.S.) 845, 89 Pac. 624; Brown v. Chicago, B. & Q. R. Co. 195 Fed. 1007.

We find no inconsistency in the special findings, and the respondents themselves contend that there are none. Even though finding No. 6 is somewhat confusing on account of the double nature of the question, it is well established that positive findings finding material facts, which are conclusive of the controversy, overcome those which are merely incidental. Robinson v. Washburn, 81 Wis. 404, 51 N. W.

578.

This being the case the court, rather than ordering new trials, should have granted the plaintiffs' motions for judgments upon the special findings; that is to say, if the orders appealed from were appealable at all, and this court has jurisdiction in the premises.

We are of the opinion that the orders were appealable. Section 7841 of the Compiled Laws of 1913 makes, among others, orders appealable, which affect "a substantial right when such order in effect determines the action and prevents a judgment from which an appeal might be taken." It also makes appealable orders granting or refusing a new trial or sustaining or overruling a demurrer, and an order which "involves the merits of an action or some part thereof."

We are of the opinion that the orders overruling the motions for judgments on the special verdicts both involved the merits of the actions. and prevented the rendition of judgments from which appeals might be taken, coupled as they were with the court's granting new trials on his own motion.

In the cases at bar both parties moved for judgments on the special verdicts of the jury. The cases were not similar to that of Persons v. Simons, 1 N. D. 243, 46 N. W. 969, where only special interrogatories were involved. The special verdicts covered all of the material issues of the cases and their findings were determinative of them. The defendant was entitled to the reception of these verdicts and to have judgments entered thereon. They were not cases of special interrogatories, where general verdicts could have been received and judg ments entered in spite of the special findings. The orders, therefore, both involved the merits of the actions and prevented the rendition of

judgments from which appeals might be taken. Robinson v. Washburn,

supra.

The orders appealed from are reversed, and the causes are remanded, with directions to enter judgments for the defendant, dismissing the several complaints.

GRACE, J. I concur in the result.

STATE OF NORTH DAKOTA, Respondent, v. CLYDE NELSON DODDS, Appellant.

Defendant was convicted of grand larceny and sentenced to state's prison for not more than five years nor less than one year, and he appeals to this court. He assigns error based on objections and exceptions to the evidence and the charge to the jury.

Held, the record shows no error and does show that defendant has had a fair trial.

Opinion filed November 4, 1918. Rehearing denied November 29, 1918.

Appeal from the District Court of Kidder County, Honorable W. L. Nuessle, Judge.

Defendant appeals.

Affirmed.

E. T. Burke, for appellant.

Wm. Langer, Attorney General, and Theo. Koffel Bismarck, and J. W. Walker, for respondent.

ROBINSON, J. In July, 1917, defendant was convicted of the crime of grand larceny and sentenced to state's prison for not less than one year nor more than five years, and he appeals. The information charges that on March 20, 1917, in Kidder county, defendant did feloniously steal and carry away numerous specified articles of personal

property of the value of $325, the property of one Walter Truax. As described in the information the property consisted of wheat, oats, flax, grain sacks, horse harnesses, collars, and hand scale, and numerous other articles each valued at less than $20.

In appellant's brief there are fifteen errors assigned on the rulings of the court during the trial and the instructions given to the jury, but there is no real attempt to show that the evidence is insufficient to sustain the verdict. Many persons were called as witnesses for the state and many as witnesses for the defendant, and the testimony, with the objections and exceptions, cover 139 pages. The proof showed beyond question that the property was stolen from Truax and that within a few days after the theft a considerable part of it was found in the possession of the defendant, and there is other circumstantial evidence pointing quite directly to the guilt of the defendant, and so it appears that the verdict is well sustained by the evidence.

Objection is made to the search of defendant's premises to discover the stolen property; to the refusal of the court to permit testimony that sacks and grain forks frequently became intermixed; to the insufficiency of the evidence to identify the forks and the horse collars and such like. Of course, in threshing time, it is common knowledge that grain forks and sacks may get intermixed, but there was no chance for such things to intermix from the time complainant left them on his place in March till the time when they were stolen.

In regard to the instructions, it is said the court told the jury that they might find the defendant guilty whether the property was taken by him or not, and that it is sufficient for the state to prove that all or any part of the property was stolen. So that under the charge, defendant might have been found guilty of grand larceny on proof that he stole a pitchfork. The answer to that is that it is wholly untrue. No judge would be so stupid as to give such an instruction to a jury. It is true the court did charge that it is not necessary for the state to prove that all of the property was taken or that it was taken by the defendant. As the evidence shows, the defendant may have used his hired man to take the property. The meaning of the sentence objected to when construed with the rest of the charge is that it was not necessary for the state to prove that defendant took the property with his own hands, and that to convict the defendant of some crime, it was

judgments from which appeals might be taken. Robinson v. Washburn, supra.

The orders appealed from are reversed, and the causes are remanded, with directions to enter judgments for the defendant, dismissing the several complaints.

GRACE, J. I concur in the result.

STATE OF NORTH DAKOTA, Respondent, v. CLYDE NELSON DODDS, Appellant.

(169 N. W. 578.)

Grand larceny-conviction for - -sentence-appeal for judgment— evidence -charge to jury objections · fair trial.

Defendant was convicted of grand larceny and sentenced to state's prison for not more than five years nor less than one year, and he appeals to this court. He assigns error based on objections and exceptions to the evidence and the charge to the jury.

Held, the record shows no error and does show that defendant has had a fair trial.

Opinion filed November 4, 1918. Rehearing denied November 29, 1918.

Appeal from the District Court of Kidder County, Honorable W. L. Nuessle, Judge.

Defendant appeals.

Affirmed.

E. T. Burke, for appellant.

Wm. Langer, Attorney General, and Theo. Koffel Bismarck, and J. W. Walker, for respondent.

ROBINSON, J. In July, 1917, defendant was convicted of the crime of grand larceny and sentenced to state's prison for not less than one year nor more than five years, and he appeals. The information charges that on March 20, 1917, in Kidder county, defendant did feloniously steal and carry away numerous specified articles of personal

property of the value of $325, the property of one Walter Truax. As described in the information the property consisted of wheat, oats, flax, grain sacks, horse harnesses, collars, and hand scale, and numerous other articles each valued at less than $20.

In appellant's brief there are fifteen errors assigned on the rulings of the court during the trial and the instructions given to the jury, but there is no real attempt to show that the evidence is insufficient to sustain the verdict. Many persons were called as witnesses for the state and many as witnesses for the defendant, and the testimony, with the objections and exceptions, cover 139 pages. The proof showed beyond question that the property was stolen from Truax and that within a few days after the theft a considerable part of it was found in the possession of the defendant, and there is other circumstantial evidence pointing quite directly to the guilt of the defendant, and so it appears that the verdict is well sustained by the evidence.

Objection is made to the search of defendant's premises to discover the stolen property; to the refusal of the court to permit testimony that sacks and grain forks frequently became intermixed; to the insufficiency of the evidence to identify the forks and the horse collars and such like. Of course, in threshing time, it is common knowledge that grain forks and sacks may get intermixed, but there was no chance for such things to intermix from the time complainant left them on his place in March till the time when they were stolen.

In regard to the instructions, it is said the court told the jury that they might find the defendant guilty whether the property was taken by him or not, and that it is sufficient for the state to prove that all or any part of the property was stolen. So that under the charge, defendant might have been found guilty of grand larceny on proof that he stole a pitchfork. The answer to that is that it is wholly untrue. No judge would be so stupid as to give such an instruction to a jury. It is true the court did charge that it is not necessary for the state to prove that all of the property was taken or that it was taken by the defendant. As the evidence shows, the defendant may have used his hired man to take the property. The meaning of the sentence objected to when construed with the rest of the charge is that it was not necessary for the state to prove that defendant took the property with his own hands, and that to convict the defendant of some crime, it was