State v. Kness

The opinion of the court was delivered by Johnston, J. : I. A. Kness appeals from a conviction for the larceny of a horse, and insists that the evidence in the case did not warrant the instructions of the trial court, nor sustain the verdict of the jury. He asserts that the testimony shows that the animal stolen was a gelding, and that proof of the larceny of a gelding does not support the charge of the larceny of a horse. He insists that the court failed and refused to make this distinction in charging the jury. The testimony is not preserved in a bill of exceptions, and without it we cannot determine the questions raised by the appellant as to the charge of the court, nor as to the sufficiency of the evidence. What purports to be a stenographer’s transcript of the evidence in the case is attached to the record, but it is [479] not referred to nor included in the bill of exceptions. It therefore forms no part of the record, and cannot be considered upon this appeal. (The State v. McClintock, 37 Kan. 40 ; The State v. Allison, 44 id. 423 ; The State v. Tilney, 44 id. 581.) The judgment of the district court will be affirmed. All the Justices concurring.