must be so clear as to prevent the possibility of one paper being substituted for another." See also Willis v. Ellis, 98 Miss. 197, 53 So. 498, 1913 Ann. Cas. 1039; Wineburgh v. Gay, 27 Cal. App. 603, 150 Pac. 1003, and cases cited in the opinion; Cushing et al. v. Monarch Timber Co., 75 Wash. 678, 135 Pac. 660, 1914C, Ann. Cas. 1239; Campbell et al. v. Weston Basket & Barrel Co., 87 Wash. 73, 151 Pac. 103; Solomon v. McRae, 9 Colo. App. 23, 47 Pac. 409. In 20 Cyc. 258, the rule is stated: "In order to render an oral contract falling within the scope of the statute of frauds enforceable by action, the memorandum thereof must state the contract with such certainty that its essentials can be known from the memorandum itself, or by reference contained in it to some other writing, without recourse to parol proof to support them." A long list of authorities will be found in the notes to that statement of the rule. In the case at bar the description of the subject matter of the contract is too indefinite to fulfill the requirements of the statute. "I Car Stoneware", may mean any kind or several kinds of stoneware, and the property could not be identified without other evidence. Nor does the additional statement, "as per orders shown for same", render the description of the property any more definite. The names of the parties giving the orders are not stated; but if that had been done, the orders referred to were not offered in evidence. The order offered in evidence not being such a memorandum as is required by the statute, it was properly excluded. In addition to the insufficiency of the memorandum, there was no competent evidence of a delivery. The only evidence of a delivery was the testimony of the salesman who took the order that to the best of his knowledge the goods, the carload, was shipped according to the orders he had taken. But he admitted he had no personal knowledge of the shipment; was not present, and, in fact, knew nothing about the shipment.

As to the second cause of action, there was no competent evidence of the payment of any freight by the plaintiff. The evidence offered on that branch of the case being the same as on the question of delivery. The plaintiff having failed to

prove its case by competent evidence, the judgment is affirmed. Affirmed.

POTTER and BLYDENBURGH, JJ., concur.

JONES v. STATE.

(No. 935; Decided Sept. 29, 1919; 183 Pac. 745.) CRIMINAL LAW-LARCENY—INSUFFICIENT EVIDENCE TO SUSTAIN CONVICTION-NEWLY DISCOVERED EVIDENCE-DILIGENCE.

1. Where the only evidence in a prosecution for larceny on which the jury could rightfully find the defendant guilty, was the testimony of a witness who had himself been convicted of the larceny of a horse upon a plea of guilty, and was under sentence at the time, whose story was improbable and contradicted by several witnesses on material matters, held, insufficient to sustain a conviction.

2. In a prosecution for larceny, the testimony of one who had purchased the stolen horse, to the effect that he had bought it from the prosecuting witness, and not from the defendant, was material, but not sufficient to require a new trial as newly discovered evidence, there appearing a lack of diligence on the part of the defendant to procure it. ERROR to District Court, Laramie County; HON. WILLIAM C. MENTZER, Judge.

William L. Jones was convicted of larceny and brings The material facts are stated in the opinion.

error.

H. Donzelman, for plaintiff in error.

The evidence is insufficient to sustain conviction; the only evidence upon which the jury could find the verdict of guilty is the testimony of one Bush, who stood in the relation of an accomplice, and whose testimony was not corroborated (Stone v. State, 118 Ga., 705; Kelly v. People, 192 Ill., 119; Com. v. Scott, 123 Mass. 222; State v. Kubbman, 152 Mo. 100; People v. Hare, 57 Mich. 505; People v. O'Neil, 109 N. Y. 251; Ayers v. State, 88 Ind. 275; People v. Mimi, 120 Mich. 530; U. S. v. Smith, 27 Fed. Cases No. 16322;

U. S. v. McKee, 26 Fed. Cases, No. 15685). He admitted participation in the theft and must be considered an accomplice (Bauer's Law & Collection Co. v. Bradbury, 84 Pac. 1007; Campbell v. Campbell, 120 Iowa 317; Wingen v. May, 99 Mo. 809). His testimony was contradicted by several witnesses as to material matters; he was at the time under sentence for conviction on a horse stealing charge on a plea of guilty; he was shown to be of bad character and undeserving of belief. The testimony of Frank Sinon should have been excluded.

The testimony of Frank Sinon was a matter of surprise that ordinary prudence could not have guarded against, and a motion for new trial should have been granted on that ground (Blackburn v. Crowder, 110 Ind. 127). A new trial should have been granted on the ground of newly discovered evidence (State v. Albert, 114 La. 70, and cases cited). The verdict is unsupported by sufficient evidence.

W. L. Walls, Attorney General; T. Paul Wilcox, Deputy Attorney General; L. C. Sampson and Sam M. Thompson, for defendant in error.

There is no statutory requirement in this state that the testimony of an accomplice shall be corroborated in order to sustain conviction; under the common law a conviction upon the uncorroborated testimony of an accomplice will stand, if it satisfies the jury of the guilt of the accused beyond a reasonable doubt (Crawford v. State, Tex. 34 S. W. 927; Armstrong v. State, 26 S. W. 829-830, 33 Texas Cr. Rep. 417; Walker v. State, Tex. 37 S. W. 423: Anderson v. State, 45 S. W. 15, 39 Texas Cr. Rep. 83: Harris v. State, 75 Tenn. 124, 126). The assignment of error on the ground of accident and surprise was addressed to the discretion of the trial court and the ruling thereon is not reviewable (Cross v. People, 47 Ill. 152, 158, 95 Am. Dec. 474; In re. Rowe U. S. 77 Fed. 161, 165, 23 C. C. A. 103; Polk v. State, 36 Ark. 117, 126; Miller v. Commonwealth, 78 Ky. 15, 22, 39 Am. Rep. 194; Barrara v. State, 42 Texas 260, 263; Moynahan v. People, 167 Pac. Rep. 1175, 1176).

There was no error in refusing a new trial on the ground of newly discovered evidence, it not appearing that defendant used diligence to procure the same, prior to the trial (Talbot v. McDougall, 3 Upper Canada Queens Bench Rep., Old Series, p. 644; Seward v. Cease, 50 Ill. 228; Bender v. Keil, 34 Misc. N. Y. 395, 69 N. Y. Sup. 655).

BEARD, CHIEF JUSTICE.

The plaintiff in error, William L. Jones, was convicted of the crime of larceny and sentenced to a term in the penitentiary. From that judgment he brings the case to this court by proceedings in error.

The errors assigned are: 1. Insufficiency of the evidence to support the verdict and judgment. 2. Newly discovered evidence.

The property alleged to have been stolen was a certain. gray mare, the property of Wesley Kelly. The evidence discloses that the mare was put in the barn of Kelly, situated a little more than a mile from the town of Pine Bluffs, where Kelly resided, about 5:30 or 6 o'clock on the evening of November 21, 1916, and disappeared therefrom some time between that hour and the next morning. The only evidence in the record tending to connect Jones with the larceny is the testimony of one Bush, a witness for the prosecution, a young man about twenty-one years of age at the time of the trial, who had theretofore been convicted of the larceny of a horse upon a plea of guilty, and was at the time of the trial under sentence there for in the industrial institute in this state, and who admitted that he had stolen other horses. His testimony was to the effect and substantially as follows: That he went to the ranch of Jones, which is about twentytwo miles from Pine Bluffs, on the evening of November 20, 1916, for the purpose of going to work for Jones. On the next day he accompanied Jones to Pine Bluffs with a load of wheat, where they arrived in the evening about five o'clock, unloaded the wheat at the elevator, put up the team in Anderson's livery barn and went together to supper about. seven o'clock. After supper went to Robinson's store, re

mained there about an hour, saw Mr. Hastings, Mr. Jones and Mr. Bloom there. Went from there to Johnston's store, where Jones and Hastings came in, was there probably twenty minutes and went out with Hastings and Jones. Went with them to MacSheedy's, was there fifteen or twenty minutes. Went from there with Hastings and Jones to Simon & Sellers' saloon, was there a short time, went from there to the drug store, then back to the saloon. Saw Jones and Hastings there. Stayed there a few minutes. Went to Anderson's livery barn. Jones and Bloom were there. Was there a few minutes and went back to saloon, where Jones came in later. Jones motioned to me to follow him outside. Hastings went out at same time. Hastings, Jones and I went to Anderson's livery barn. Jones said he wanted to give Hastings the slip. Jones and I went to Bloom's barn. Found Bloom there. On the way down Mr. Jones had told me he had a horse down at Frank Bloom's barn he wanted me to ride out to his place. I told him all right, so we went into Frank Bloom's barn and he pointed the horse out. The horse was already saddled and bridled, and he said: There is the horse. They told me to be careful of this horse, that he hadn't been ridden much. Jones told me that, and also gave me instructions not to tie my reins together, so if she got away and throwed me or anything I could catch her again, and Bloom spoke up and told Jones to tell me to go out the State line road, and I didn't do it. It must have been about eleven o'clock. (On cross-examination he said 10:30.) That he led the horse out in the street, got on it and rode out to Jones' place, arriving about four o'clock in the morning, put the horse in the barn, fed it, talked with Mrs. Jones, who was in bed. Jones came home about five o'clock in the evening. He told me Wesley Kelly was looking for this mare, that he had been down past Frank Bloom's place with a car, and that he had to get her out of there that night; that Kelly might be out there the next morning. After he put his team away and got supper, he saddled his horse and gave me instructions to saddle my horse. He said it would be best for me to go along, as they