altogether, we are not prepared to say that it does not support the verdict, and, although the defendant urges its insufficiency. It is not necessary to decide that point, as there is at least one other question presented by the record which will reverse the case.

On the trial, the court gave the following instructions: "The jury are instructed that a conviction can not be had in this case upon the testimony of an accomplice, unless the testimony of such accomplice is corroborated by other evidence, tending to connect the defendant with the offence committed; and the corroboration is not sufficient if it merely shows the commission of the offence. The corroborating testimony, to be sufficient as such, must be proof of such facts and circumstances, or proof of such facts, or proof of such circumstances, which, standing alone, tend to connect the defendant with the crime. By the word 'accomplice,' as here used, is meant a person who has participated in the commission of the offence charged; and the court instructs the jury that the witness Maud Jarvis, upon her own testimony, is and was an accomplice in the commission of the crime charged in the indictment in this case, and that her testimony must be corroborated; that is, that the jury must find, from the evidence introduced in the case, that her testimony has been corroborated to the extent that corroboration has been by this instruction required, before the jury can be justified in finding the defendant guilty, if her testimony is relied upon in reaching a conclusion of guilt." To the giving of this instruction, the defendant duly excepted. His counsel requested the following instruction, which was denied, and an exception saved: "The court instructs you, gentlemen of the jury, that Maud Jarvis or Maud Anderson (her name having been changed by subsequent marriage), is an accomplice in this case. If you find that any offence has been committed, and that a conviction cannot be had

upon her testimony, unless she be corroborated by such other evidence as tends to connect the defendant, Fisher with the commission of the offence; and the corroboration is not sufficient if it merely shows the commission of the offense and the circumstances thereof."

The instruction contained other provisions which were not justified by the evidence; and the instruction, as requested was properly refused.

The defendant complains that the expression "or the circumstances thereof" is omitted from the instruction given, and that, by reason of such omission, the defendant was prejudiced. Sec. 5200 of the statutes of Oklahoma of 1893 provides: "A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” It will be seen that the part of the instruction quoted above, and which was denied by the court, was based squarely upon this section of the statutes, if given, would have advised the jury that proof of the circumstances of a crime is not a sufficient corroboration of an accomplice to authorize a conviction, while the instruction given by the court nowhere contained such a statement. The Legislature in its wisdom, declared in positive terms that a corroboration of an accomplice which merely shows the commission of a crime, or the circumstances thereof, is not sufficient. The defendant was entitled to have the jury advised of this rule of the law; and, having been denied this safeguard, it is possible that the jury have given to the evidence of the accomplice, Maud Jarvis, greater weight than it otherwise have received. Taylor vs. Commonwealth, (Ky) 8 S. W. 461, also footnote to Stone vs. State, (Ga.) 98 Amer. St. Rep. 245.

Other errors are assigned, but it is unnecessary to

discuss them. For the reasons stated, the judgment of the lower court is hereby reversed, and a new trial granted, at the cost of the territory.

All of the Justices concurring, except Gillette, J., who presided at the trial below, not sitting.

THE STATE NATIONAL BANK OF WATERLOO, ILL.

VS.

No. 1906

THE CITY NATIONAL BANK OF KANSAS CITY MO.

(Supreme Court of Oklahoma. Filed Feb., 13th, 1907.)

Error from District Court of Kay County

B. T. Hainer, Trial Judge.

Reversed and Remanded.

Replevin-Demurrer to Evidence-Chattel MortgagesBurden of Proof,

In a replevin action between two mortgagees, where the plaintiff proves all of the facts necessary to entitle it to recover, unless the defendant has a prior lien on the property under its hist mortgage, the defendant must not only establish that the mortgage is first in date of execution, but must also affirmatively establish, where such fact is denied by the plaintiff, that the property in controversy is the same property included in defendants mortgage.

(Syllabus by the Court.)

W. L. Barnum, and J. E. Burns, for appellant.
J. F. King, for appellee.

Opinion of the Court by

BURWELL, J.: This is an action in replevin to recover the possession of one hundred and fifty cattle. The plaintiff claims the cattle in question as assignee of a mortgage executed thereon by John A. Malone and Frank Prudom to the Seigle-Sanders Live Stock Commission Company, to secure the payment of a promissory note for $5,130.63, executed by the same parties to said company. It appears from the record that N. J. Walden was the original owner of the cattle in question; that he turned them over to Prudom and Malone under an agreement with the Seigle-Sanders Live Stock Commission Company that the price of these cattle should be credited on a note and mortgage previously executed to the Seigle- Sanders Company for something over $15, 000, which note and mortgage was by the mortgagee duly assigned to the City National Bank of Kansas City, Missouri. The cattle were turned over to the State Bank of Waterloo, Ill., by Prudon and Malone, and the agents of the defendant took the cattle from the pasture where they were being kept by the State Bank of Waterloo, and it commenced this action of replevin.

It is contended by the defendant in error that the cattle in controversy are a part of the same cattle which were included in the prior mortgage executed by N. J. Walden to the Seigle-Sanders Company and by it assigned to the City National Bank. On the trial in the court below, when the plaintiff rested the defendant, filed a demurrer to the evidence, which was sustained by the court, and judgment rendered for the defendant, The City National Bank. Exceptions were saved and this appeal duly prosecuted to this court.

The demurrer should have been overruled. The evidence clearly showed that the title to the cattle in question was obtained by the State Bank of Waterloo from Walden through Prudom and Malone, and thot the

State Bank of Waterloo had the possession of the cattle, and the City National Bank, by force, took the cattle away from it, thereby compelling the State Bank of Waterloo to commence this action. The City National Bank obtained no advantage by such course. It claims the cattle under a prior mortgage and, under the evidence, it was encumbent upon it to show affirmatively that the cattle in question were included in its mortgage There is no evidence in the record which authorizes such a finding. Without such evidence, the City National Bank may fail, because the State Bank of Waterloo was in the peaceable possession of the cattle under a claim which appeared regular, and expressly denied, in reply that the cattle in question were a part of the same cattle included in the mortgage held by the City National Bank

On a former appeal in this case the judgment of the court below, which was for the State Bank of Waterloo, was reversed, because it was not supported by the evidence, and it is insisted here that such reversal by the the court is conclusive on the court below as to such issue. There is nothing in such a position. It was clearly shown in the former trial that the cattle in controversy were included in the prior mortgage held by the City National Bank; but the case was reversed and remanded for a new trial, and we cannot consider the evidence presented by the record now before us.

On the trial of the case in the court below there were certain admissions made by the plaintiff regarding defendants mortgage, but none of those admissions went to the question as to whether or not the cattle in the controversy were included in the mortgage held by the City National Bank.

The judgment of the lower court is hereby reversed and a new trial granted, and the case remanded with directions to the court below to proceed in conformity herewith. Costs occasioned by the appeal taxed to the appellee. All the Justices concurring, except Hainer, J., who presided at the trial below, not sitting.