
    The State v. Wholeham.
    1. Criminal laws circumstantial evidence. Where a defendant was indicted for maliciously shooting and killing a mare, it was held admissible and pertinent as a circumstance to connect defendant jvith the commission of the offense, to show that the shot found in an animal that was in company with and wounded when the one killed was shot, corresponded in size with those found at defendant’s house on the afternoon of the day that the shooting took place.
    
      
      Appeal from Fayette District Court.
    
    Wednesday, June 12.
    Dependant was indicted for maliciously shooting and killing a mare, the property of, etc., tried, found guilty, sentenced to one year’s imprisonment in the county jail, and appeals.
    
      Bxtrdiclc <& Ainsworth for the appellant.
    
      F. F. Bissell, Attorney-General, for the State.
   Wright, J.

This case was submitted without argument. The record raises but two points. First, the admiss’on improper testimony. It seems that two ajhmals were shot at the same time. A witness was asked to state the kind of shot found in the one not killed, with the view of establishing that they agreed in size with those found at defendant’s house on the afternoon of the day that the shooting took place. This was objected to, but upon what ground we cannot imagine. The identification of the shot was important and material. The proof was offered not to charge the defendant for shooting the other mare, for the State only sought to convict for the one found dead, but, as a circumstance, to connect him with the offense charged in the indictment. There was but little positive testimony, and the fact sought to be established was important and pertinent. Second, did the testimony warrant the verdict ? We answer unhesitatingly that it did. Defendant had threatened to shoot the stock owned by the prosecuting witness ; two shots were heard in the direction of defendant’s field, and soon thereafter the mares were seen coming from the same point to the owner’s house; they were tracked into and out of the field; were shot when found ; a gun was found, recently discharged, in defendant’s house, with shot in the pouch answering in size to those found in the mare; the defendant, when interrogated on the subject, gave evasive and unsatisfactory answers, and how more certainly, from circumstances, a defendant could be connected with a crime of this nature it would be difficult to conceive. Certain it is that the verdict was not so far against the weight of testimony as to justify our interference.

Affirmed.  