The issue on the evidence is as to the identity of the defendant with the person who committed the assault. The girl assaulted was not quite nine years old. She testified that she never saw that boy before the time of the assault. On the next morning when the defendant was arrested aiid she was canned to identify him, she said he was not the boy. He then wore a woolly skull-cap. She had previously told her father that the boy who' assaulted her had on a soft slouch hat. Her father asked her why she did not think that was the boy, and she answered that he did not have the same hat on. The defendant was then released, and the girl’s father told her he was satisfied that was the boy. According to his testimony, this was all he said to her on the subject. She testified that she did not knowhow she came to conclude the defendant was the boy; her father talked to her and said he thought he was the boy ; after she talked with her father she thought he was the boy; she thought he was not the boy when she first saw him, because he didn’t look like him; she changed her mind when he was in sight; she said he was not the boy at first, but when she saw him again she said she knew it was the boy; he had on a cap when she fii’st saw him; she does not know what he had on the next time, thinks he had on a hat. Her father testified that when she saw .him the next time, he was sitting in a room containing also half a dozen other boys of his size; and she said to her father, “I know where that boy is; he is right over there behind that man,” and pointed him out. It does not clearly appear where or when this occurred. The sheriff' testified that just after releasing the defendant from the first arrest, he (the sheriff) went with the girl and her father to-the place whore the assault was committed ; and he further testified thus : “He denied to me having been out there at all, so I j ust thought he was not the boy. So we got in the buggy and went out to Tom Kirkpatrick’s, to Bill Howard’s (a darkey out there), and found out he was there ; then I came back to town and went to arrest him. I heard he was at home; I went one way and Mr. Hill went the other, and I met Scruggs the preacher down here, and ho told him I was hunting for him, and he just pulled out down the street and Mr. Hill struck through the woods after him, but we never caught him in ten days, and then we caught him in Atlanta.” William Howard testified that the defendant was at his place on the day the assault occurred, and left there between two and three o’clock in the afternoon, going to Decatur; but witness did not know what route he went. According to the testimony of t-ho assaulted girl, she was on her way home from the school which was at Decatur, when the assault was committed ; and the boy was barefooted. Her father testified that he found lots of barefoot tracks at the place she showed him as where the crime was committed; he measured them with a stick which he handed to counsel, and which would approximate the length of the foot that made the tracks. Further on he testified: “Mr. Mercer came and told me first, and I went right up there with him and we tracked a barefoot boy opposite Dr. Goss’s office, and there we lost the track.” The sheriff testified that he did not know how old the defendant was; should think, though, he was over fourteen; remembered him eight or ten years; then he was running all about the streets. The defendant introduced no evidence. He stated that his father sent him out to Bill Howard’s for some seed, and he went out there in Howard’s wagom got the seed, played around there awhile, and then left and came on back, and did not meet anybody at all but an old man ; that’s the only one he saw at all coming on; he did not come up to Dr. Goss’s, did not come that way, but turned off and took a near way to his home. He further stated: “Eapa came home that night and was talking to Mama about it, and he said the man who lived out that way said, if he just knew what boy went out that road he was going to kill him, he didn’t care whether he done it or not; he said he was going to kill him. And then when Mr. Austin [the sheriff] told me to come on and go with him and he asked me about it, I told him, no sir, I hadn’t been out that road, because I was scared of that man.”W. W. Braswell, for plaintiff' in error.John S. Candler, sólicitor-general, contra.
