
    Robert Dobson v. The State.
    1. Criminal Law. Altering marie of animal. Insufficiency of evidence.
    
    A conviction for tlie statutory offense of altering the mark of an animal will not be warranted upon evidence merely that a sheep belonging to the prosecutor was found in the open- woods, between his house and defendant’s, with its mark altered to that of tlie accused. A verdiot of guilty upon such evidence should have been promptly set aside.
    2. Verdict. Setting aside. Evidence insufficient.
    
    While the trial judge should use due caution not to set his opinion against that of the jury, he should not hesitate to set aside any verdict not supported by evidence.
    From the circuit court of Harrison county.
    Hon. S. H. Terral, Judge.
    Appellant was indicted for knowingly altering the mark of a sheep, the property of one Davis. The only evidence adduced on the trial was that of Davis and two other witnesses, who testified that they found a lamb running in the open woods, between the home of Davis and that of the accused, and that the mark of the lamb had been altered from that of Davis, its owner, to that of the appellant.
    The jury found a verdict of guilty. Motion for a new trial was overruled, and the defendant was sentenced to one year’s imprisonment in the penitentiary.
    
      E. J. Bowers, for the appellant.
    There is nothing in the record to connect appellant with the alteration of the mark, save the circumstances that it was found with its former mark changed to that of appellant. This is wholly insufficient to warrant a conviction. To say that this evidence renders appellant guilty beyond a reasonable doubt, is to make it possible to convict the most innocent for acts done by others, and to shut them off from any defense. It is impossible in such cases for them to do more than to deny commission of the offense. It would, in fact, require a defendant to establish his innocence.
    'While this court will in all cases be somewhat slow to reverse merely on the facts when the judge below, who heard all the witnesses, declined to grant a new trial, yet this should be done where the evidence falls so far short of proving guilt as it does in this case.
    
      T. M. Miller, attorney-general, for the state.
    It is submitted to the court whether the jury were warranted in convicting the appellant upon testimony merely to the effect that the mark of prosecutor’s sheep was changed to the defendant’s mark. I find nothing in the record connecting the appellant with the crime proved, outside the fact of his interest.
   Campbell, J.,

delivered the opinion of the court.

The verdict should have been promptly set aside; indeed the jury might properly have been directed by the court to give a verdict of not guilty. There is no evidence tending to show the guilt of the defendant, and no such a verdict should be allowed to stand. An important factor, influential in determining this court not to disturb verdicts, where there is evidence to sustain them is, that the circuit judge sanctions the verdict by refusing to set it aside, and the presiding judge, while using due caution not to set his opinion against that of the twelve men in the jury-box, in case of disputed facts and discordant witnesses, should not hesitate to set aside any verdict which is not supported by evidence.

Reversed and remanded.  