
    14032.
    Henderson v. The State.
    Decided March 6, 1923.
    Accusation of malicious mischief; from city court of Alma — Judge Henson. September 30, 1922.
    Harley Henderson was charged with having maliciously blown up and destroj'ed, by the use of dynamite or some other explosive, a sawmill engine and boiler of J. F. Lovell. The evidence mainly relied on as tending to show his guilt related to tracks and his riding in a buggy some distance from the sawmill in the night of the explosion and the next morning, and to remarks made by him. From the evidence it appeared that Lovell’s sawmill was blown up about twelve o’clock at night (or, according to other testimony, about ten o’clock) with some kind of explosive. Fuses of the kind used in exploding dynamite and blasting powder were found near the boiler the next morning. A set of human tracks led away from the boiler and down a path for a distance of about 200 or 300 yards to a settlement road, and then through woods about a half or three quarters of a mile from the sawmill site to where a mule and a buggy had been tied. It was testified that the witnesses could not follow the human tracks farther, but they followed the tracks of the mule and buggy to Coffee, which was about six miles from the sawmill site and about ten miles from the defendant’s home. There was evidence as to peculiarities in the tracks and as to similarity of the tracks to those of the defendant and his mule, but there was conflict in the testimony on this subject. It was testified that about eight or nine o’clock in the night of the explosion the defendant and Enoch Waters were seen in a buggy about three miles from Lovell’s sawmill, driving a mule, and that about four o’clock the next morning they were seen going to the defendant’s home in a buggy. A witness testified: “ A few clays before it was reported that .T. F. Lovell’s sawmill in Bacon county was blown uji I carried the defendant in my automobile from Blackshear to his home. . . He had a small package and laid it on the seat and said that we wanted to be careful, that we might get blowed up, that it was dynamite. I think I said I did not like to be hauling that stuff, that we might get blowed up. Then he said, ‘No/ it was not dynamite, it was whisky. . . T did not see what was in the package and did not know what was in it.” Others testified that a short time before the explosion the defendant said that “Mr. Lovell could not saw that timber on that land with that machinery.”
   Bloodworth, J.

The evidence in this ease is entirely circumstantial, and fails to connect the accused with the crime to the exclusion of every reasonable doubt, and the judge erred in overruling' the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Luke, J., concur.

The defendant, in his statement at the trial, said that he had nothing to do with the explosion, and was at home the entire night in question; that he had never seen Lovell, but had sent him word not to cut the timber unless he came and bought it and paid for it; that he (the defendant) consulted attorneys about bringing suit against Lovell for damages, but had no intention of doing him damage. Others testified that on the night in question the defendant was at home all night; that the wife of Enoch Waters, who lived there, was sick that night, and they were sitting up with her, and that in the morning, just before day, Waters and the defendant’s brother left there together to get some medicine for her. It was testified that before and after the time of the explosion the defendant’s buggy had a piece of wire wrapped around the right-hand rear wheel, over the tire, and that there was no impression of such a wire in the buggy tracks described by the witnesses for the State. It was also testified that about the time of the finding of the tracks one Williams was seen coming to the sawmill, and that he had tracks of the kind described by the witnesses for the State.

E. II. Williams, 8. F. Memory, for plaintiff in error.

II. L. Causey, solicitor, contra.  