
    PRITCHETT v. HORNBUCKLE.
    August 24, 1896.
    
      Certiorari. Before Judge Milner. Bartow superior court. December J, 1895.
    This was a suit for triple damages under section 1445 of the code, for killing a sow belonging to the plaintiff. The sole question made is, whether the verdict in her favor is sufficiently supported, the evidence t-o connect defendant with the killing being circumstantial. Tie farmed on land south of a wagon road and east of a creek which runs north and south and is crossed by the road running east and west. Plaintiff lived on a road leading from said wagon road toward the Shelman place. The sow had some large sh'oats, 'and they ran during the day about the ford of the creek where the wagon road crosses it. One night the shoats came home and the sow did not come. The next day Hormbuckle and E. B. Holcombe went to hunt for her, and found her dead in a ditch on the Shelman place, in a field cultivated by Eon-ester, about half a mile down the creek and north of the wagon road, on the east side of the creek. They first saw her tracks where she came out of the creek a quarter of a mile or more north of the wagon road. They saw where she had laid down on some cane, and there saw blood and flies. From there they followed the tracks a quarter of a mile down the creek in Forrester’s field to where they found her dead. She had been shot, and Holcombe took a number of shot from her. They found no tracks leading down the creek from the wagon road to where they first saw she had laid on the cane, which was a little over a quarter of a mile down the creek and north of the wagon road. Hornbuckle then went to defendant ■and asked him if he did not shoot and kill the sow, and he denied it. He was asked if he had not shot his gun the day before, and he said he had, claiming that he' had shot at a hawk. He was asked what kind of shot he used, and from whom he bought them; and said, he did not know the number of the shot, and bought shot sometimes from Puckett and Hammond at Stileeboro, and sometimes at Oartersville. Hornbuckle asked him to .go to his house and show his shot; and he said, he did not have time, as he was on his way to his work. Hornbuckle and Forrester examined the ground between defendant’s garden and ‘the creek, above the foot-log up to an old road leading from defendant’s stable down to the creek, which road was used by him in watering his stock. They found a good deal of blood scattered in this road, and saw blood in' one place between the road and the creek, about five or six feet from the creek. "Where this blood was found were hog tracks leading from the road toward the creek. Hpon being questioned about this, defendant said his mule became sick With colic 'and he bled it freely in the mouth. He had frequently done this. He told Hornbuckle to go and examine the mule, the bridle and the stable, and see whether or not he was telling the truth. Hornbuckle did not make the examination, though 'he was near the stable. Forrester did not think a mule could have gone to the spot where they found blood about half way between the ol'd road and the creek, from which spot hog tracks led toward the creek, as he bad to stoop to -get in there. This spot was about twenty-five or thirty feet from the road. The blood and tracks were about forty or fifty yards above and south of the foot-log. Forrester did not kill the hoig. Dock Holcombe 'had a crop of corn on the east side of the creek, south of Forrester’s crop and north of the wagon road. Wilson Glenn testified, that the sow and pigs were .at his house on the morning of the day she was said to 'have been shot, and he made his boy Sam drive them down to the. ford of the creek early that morning. He lived .about a quarter of a mile from the creek, on the other side of it from defendant. Before 'that time the sow had broken into Glenn’s crib and eaten a good deal of his com. He lived north of the wagon road, but had a crop south of it. He went to the creek a short time after his boy drove the hogs 'there, and saw the pigs at the ford, but did not see the sow. Sam Glenn testified, that he drove the sow and pigs to the ford of the creek, and when they got there the sow went under the foot-log and went around beyond defendant’s garden, but the pigs did not follow. He then went back home, and to school. E. B. Holcombe testified, that he heard a gun fire shortly before he last saw the sow. From the report, ■the gun was fired in the direction and near defendant’s house. Witness did mot wound, kill or bruise her. De^fendant told him, (the same day the hog was shot, that Arthur Davis learned him how to stop, hogs from bothering him. He said he generally gave them the cholera, and they went, and nobody knew where. Forrester cultivated the east side of the creek, and Hammond the west side, where witness first discovered the tracks of the hog coming out of the creek a quarter -of a mile below where the wagon road crosses -the creek. Witness cultivated the land on the west side of the creek, and his son F. E. Holcombe cultivated the land on the east side., between where he first saw th'e 'hog track and the wagon road. Hammond cultivated the land on the other side of th© creek. These lands were planted in com and cotton. A. F. Holcombe testified: The last time I saw the sow, she was lying down by the fence about 100 yards from our house. I heard a gun fire shortly before I last saw the sow. From tbe sound of tbe gun, it was right above tbe foot-log up the creek; it was fired near defendant’s house; it was right above his house. I saw the smoke; never saw the person who fired the gun art the time it fired. Immediately after it fired I saw a hog. It was right at the foot-log when I first saw it. It went right down to a spring box below defendant’s house, and came out of the creek there. "When I first saw the sow she was close to where I beard tbe gun fire. It was on land •occupied by defendant. I saw him immediately after the firing; 'he was going into his house; he had a gun on his shoulder. When the gun fired I was about 200 yards from the wagon road; we were below the ford where the wagon road crosses the creek. The hog was right at the foot-log when I first saw it after I heard the gun fire. It jumped into the creek, on the opposite of the creek from me, up at the water-gate above the wagon road crossing. It walked out of the oreek at the spring on the opposite side of the creek from me. It went down to the other fence, rooted out a place and lay down, after it" came out of the creek at the spring. It lay down at the fence across the road below the spaing and on the opposite side of the creek from where I was. I never saw it any more after that. When I first saw it, it was about 225 yards from me. The •closest it got to me was about 100 yards; this was when it lay down. I did swear on former trials, that the last time I saw tbe hog was when it jumped into the creek above the wagon road and went out of tbe creek near tbe spring-house, and then down across the wagon load to the fence enclosing the field, and then lay down.
   Lumpkin, J.

The evidence, though entirely circumstantial and not absolutely conclusive against the defendant, was sufficient to warrant the verdict for the plaintiff rendered in the magistrate’s court; and this court, therefore, will not reverse a judgment of the superior court refusing to sustain a certiorari brought to set the verdict aside on the ground that it was unsupported by the evidence. Judgment affirmed.

Defendant testified, denying that he short, killed or in any way injured the sow, or that he ever saw her in his enclosure, etc. The value of the animal was proved-

J. B. Conyers, for plaintiff in error.

A. W. Fite and A. S. Jolmson, contra.  