— The defendant was indicted, tried and convicted, under section 3620 of the Revised Statutes of 1889, which reads: “Every рerson who shall willfully and maliciously kill, maim or wound- any horse, mare, colt, mule, ass or neat or horned cаttle of another, shall, upon conviction, be punished by imprisonment in the penitentiary not exceеding three years, or by imprisonment in the county jail not less than six months, or by a fine of not less than $50, or by both such fine аnd imprisonment.” The punishment of the defendant was assessed at imprisonment in the county jail for the periоd of six months. The circuit court granted the defendant an appeal to the supreme court.
The supreme court has transferred the case to this court, the order of transfer reciting that an opinion was filed in the cause, but such opinion, if filed, does not appear in the record, nor among the reported decisions of that court. The order of transfer also recites that, in the opinion of thе court, the offense charged was a misdemeanor, and that for this reason it had no jurisdiction of the appeal.
The statute, Revised Statutes, 1889, section 3975 thus defines a misdemeanor: “The term‘misdemeanor/ аs used in this or any other statute, shall be construed as including every offense punishable only by fine or imprisonment in a’county jail, or both.” A felony is thus defined: “The term ‘felony/ when used in
The appellate jurisdiсtion of this court in criminal matters is confined to misdemeanors. The supreme court in the cases of State v. Green,
The appellant has filed no brief, During the month of June, 1888, the prosecuting witness and the defendant resided in the same neighborhood in Shannon county. The evidence for the state tended to prove .that on the night of June 12 the prosecuting witness turned one of his horses on the range; that during that night the horsе’s tongue was cut off about two-thirds; that within about forty days thereafter the animal died from the effect of thе wound; that on the morning of the thirteenth it was found just outside of the defendant’s inclosure; that the tracks of the hоrse and also the tracks of a man were found inside of the defendant’s field, indicating that the animal had bеen caught in the corner of the fence; that the tracks of the man were traced into the barn lot of the defendant; that the tracks were measured, and that they were found to correspond exactly in size with the boot or shoe worn by
The defendant denied the charge, and he and his wife both testified that hе was not outside of the house during the night, and that in the morning he only went as far as the barn for the purpose of feeding his horses. The defendant also proved by other witnesses that the horse did not die from the effeсts of the wound.
The defendant was convicted entirely on circumstantial evidence. We have loоked carefully into the instructions, and find that the law applicable to that character of evidence in criminal cases was stated to the jury in a way most favorable to the defendant. He has nothing tо complain of on that score.
There were two counts in the indictment. One charged the defendant with maiming the animal, and the other with killing it. The jury returned a general verdict. There was no error in this. The indictment charged but one and the same offense, and there ought to- have been but one count. The single and only сharge was that the defendant cut the horse’s tongue. The fact that the injury was such as to finally cause thе death of the .animal only aggravated the original offense, and did not create another.
The сhain of circumstances establised by the evidence fully justified the submission of the case to the jury. An apрellate court will not reverse the judgment in a criminal case on the ground that the verdict is not suppоrted by the evidence, unless there is an entire failure of proof, or the evidence of the prоsecution is of such a weak or flimsy character as to authorize the inference that the- finding was thе result of passion, prejudice or mistake. State v. Howell,
The defendant offered to prove by several wit
We have gone through the record, and our conclusion is that there is no error. The judgment will be affirmed.