
    BALLEW v. THE STATE.
    March 30, 1896.
    Indictment for malicious mischief. Before Judge Milner. Catoosa superior court. February term, 1896.
   Atkinson, J.

The evidence being insufficient to raise ©ven a slight suspicion of guilt against the accused, his conviction was wholly unwarranted, the verdict was contrary to law and ought to have been set aside. Judgment reversed.

". Ballew, Templeton and Green were indicted for maliciously breaking ten window-glasses in tbe dwelling of John Cupp. Ballew was found guilty, and his motion for new trial, upon tbe general grounds, was overruled. Cupp testified: The window-glasses of my home were broken out between February 20 and 25, 1895. I left one evening and returned tbe next afternoon about 4:30 o’clock. I was away from home wben tbey were broken. I think tbey were broken about 11 a.m. Judging from tbe tracks I measured at my bouse, there were three different tracks, one looked like a number ten, one number seven and one number six. Green and Templeton came to tbe field tbe next day where I was plowing. I measured their tracks, and they corresponded with those at tbe bouse. Defendant never came, and I never measured bis track. Tbe other tracks corresponded with bis. Eight window-glasses were broken, and in tbe bouse were three rocks with which tbey were broken. Bocks were thrown through inside doors. X nailed up the windows wben I came home that evening. I tbink tbe tracks were made about 11 a.m., because tbe ground was frozen and thawed during tbe day. It thawed about 9 a.m., and stayed thawed until 4 p.m. Tbe bouse is on the main road and Binggold road, where there is a great deal of passing. I do not know who broke the glasses. —Dill testified: I saw defendants Green and Templeton passing my bouse about 11 o’clock February 20, 1895, tbe day Cupp’s window-glasses were broken. Tbey were thirty yards from me. One looked back; bis face was red and I thought be was drinking. Don’t know that defendants were drinking. Some one of tbe party threw rocks at me. Don’t live on tbe road Cupp does. They were about a mile from Cupp’s, going that direction. He lives on the main public road which many people travel. I afterwards saw tbe same parties going back. Tbey bad bad time to go to Cupp’s and back. — Masengill testified: I was chopping wood the day the glasses were broken, about a half mile from Dill’s, and saw three persons about Í1 or 12 o’clock. They were some distance from me and were between a quarter and a balf mile from Cupp’s, going in that direction. I don’t know who they were. Didn’t notice any evidence of drunkenness. About ten or fifteen minutes afterwards I heard some noise. Didn’t pay any particular attention to it; supposed Cupp had returned home and was nailing up his windows.

W. E. Mann, for plaintiff in error.

A. W. Fite, solicitor-general, by A. 8. J ohnsorv, contra.  