
    18340.
    Wilson v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54; p. 1179, n. 67; 17 C. J. p. 252, n. 16.
    Decided November 16, 1927.
    Cruelty to animal; from Houston superior court—Judge Mathews. June 25, 1927.
    Connie Wilson was charged with cruelty to David Cromer’s cow, by shooting her. They lived on adjacent farms. Cromer missed the cow, which had been tied to a stake on his premises, and, after sundown of the same day, acting on a report of his son, whom he had sent to look for her, he went to the defendant’s house. A light which he saw in the house as he approached was extinguished. The cow, with her left hind-leg broken and a hole in it about the size of a bullet, was found lying down in the defendant’s field, back of his bam, which was immediately behind his house. The next day Cromer went back there with the sheriff and others. He testified: “I [then] told Connie Wilson that I was a poor man and could not afford to lose the cow. Connie Wilson said that he would pay the doctor’s bill, but he has never spoken to me about this cow since. Nothing that I know of but a bullet could have made the hole in the hide and broken the leg as it was broken. . . Connie Wilson denied that he shot the cow. . . I let her leg stay bandaged up for about seven weeks. When I took the bandage off, the bone was sticking out of her leg. . . Her leg was rotted off where she was wounded. I never looked for the bullet after she was dead. I never saw any bullet.” „ Another witness testified as to the defendant’s promise to pay the doctor’s bill. A veterinary surgeon and others testified that they could not positively swear that the wound was made by a bullet, blit they thought that it was. It was round and smooth. The surgeon swore that the wound was just above the hock-joint, and he could not explain what it was unless it was a bullet; in his opinion the cow was shot with a rifle or pistol. Cromer’s son testified that just before sundown on the day on which the cow was missed he saw her lying down near a hay-stack back of the defendant’s barn, 'with a hole in her leg, and that the defendant was plowing in a circle around his fiéld and passing within fifty steps of the cow. The persons living on the place with him were his wife, his mother and several small children. The defendant, in his statement at the trial, said that when he started plowing he saw the cow and noticed that she was hurt, but did not know how she was hurt; that he gaw Cromer’s boy come up on a mule, and whistled to him, but the boy did not hear, and rode off. The defendant said that he told Cromer that he would not pay for the cow. Cromer’s son testified that the defendant passed right by him when he went to the defendant’s place and saw the wounded cow, and that nothing was said to him by the defendant. Several witnesses testified that they did not hear shooting that day, though they were near where the cow was found.
   Broyles, C. J.

The evidence upon which the accused was convicted was wholly circumstantial, and did not exclude every reasonable hypothesis other then that of his guilt. It follows that the court erred in refusing the grant of a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

8. M. Mathews, M. Kum, for plaintiff in error,

cited: 26 Ga. App. 591; 147 Ga. 134; 117 Ga. 230; 17 Ga. App. 820; 19 Ga. App. 782; Penal Code, § 1010.

Gharles E. Garreit, solicitor-general, contra,

cited:1 1 Kelly, 610; 59 Ga. 738 (6); 63 Ga. 93.  