delivered the opinion of the court.
This is an appeal from a conviction in the circuit court, on an appeal from the court of a justice of the peace on an affidavit which charges that the accused “did shoot on a public highway.” There was no demurrer to the affidavit, which could have been readily amended; and so we do not consider the objections made in this court that it does not show what highway, nor that it was unlawfully done. This should have been brought to the attention of the court below. The statute itself seems to denounce the penalty against those who “shoot on a public highway,” and any justification should be set up in defense or taken advantage of by demurrer.
Under section 171 of our state Constitution and Code 1906,
Affirmed.