
    Garland v. Wholeham.
    1. Dew trial: conflicting evidence. Where there is a conflict of evidence and the jury have fairly considered the case, a new trial will not he granted.
    2. Damages: measure of : punitive damages. Punitive damages may he allowed in a civil action for a wrongful act, although such act constitutes an offense punishable under the criminal statutes. Following Kendriokson v. Kingsbury, 21 Iowa, 879.
    
      Appeal from Winnesheih District Court.
    
    Saturday, December 12.
    Action to recover the damages resulting to plaintiff* for the alleged willful and malicious killing of one roan horso by the defendant; and, also, for the alleged willful and malicious poisoning of two black mares with foal, and the felonious taking and conversion of certain fencing boards by the defendant. The value of all the property is alleged to be $1,020, and $3,000 damages are claimed. Answer in general denial. Trial to a jury; verdict and judgment for plaintiff for $1,700 damages. The defendant appeals.
    
      O. R. Willett for the appellant.
    
      R. Noble for the appellee.
   Cole, J.

— The appellant makes but two points:

First. That the verdict is contrary to the evidence. We have unitedly examined witb care and deliberation, the entire evidence contained in the transcript, and while, as an original question upon the evidence itself, we might not be free from doubt, yet we are clear, under the rule so often recognized and applied, that where there is a conflict of evidence, and the jury have fairly considered the case, and found a verdict therein, we can not properly disturb it.

The evidence, to a considerable extent, is circumstantial, and it would serve no useful purpose to review it herein at length, and we omit to do so.

Second. The court instructed tbe jury, in substance, that if they found that defendant maliciously killed tbe horses, they might give damages by way of punishment, in addition to the actual value of the property destroyed.

It is now insisted, that, since the acts charged in the petition constitute an offense punishable under our criminal statutes, the allowance of damages by way of punishment is contrary to the Constitution, which declares that a person shall not be twice punished for the same offense. We have already determined this question upon careful deliberation, in accordance with the instructions of the District Court. Hendrickson v. Kingsbury, 21 Iowa, 379.

Affirmed.  