#### STATE v. P. T. STIERS.

(Filed 21 September, 1938.)

Animals § 7—

Evidence in tbis prosecution of defendant for cruelty to animals held insufficient to be submitted to tbe jury.

Appeal by defendant from Sink, J., at January Term, 1938, of RockiNgham.

Reversed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

Karl R. Massey, B. W. Walker, Worth Henderson, and Frank P. Hobgood for defendant, appellant.

ScheNCK, J.

Tbe bill of indictment charges that tbe defendant “unlawfully, willfully and wantonly did cruelly beat, torment, wound and injure and deprive of necessary sustenances and caused to be deprived of necessary sustenances and needless (ly) kill certain useful animals, to wit: mules and horses and other livestock, the property of P. T. Stiers, . . .”

When the State had introduced its evidence and rested its case the defendant moved to dismiss the action and for judgment of nonsuit. This motion was refused and defendant excepted. After all the evidence in the case was concluded, the defendant again moved for a judgment of nonsuit, and motion was refused, and defendant excepted. C. S., 4643.

Upon a careful inspection of the evidence, considering it in the light most favorable to the State, we are of the opinion, and so hold, that it is insufficient to be submitted to the jury upon the charge laid in the bill of indictment. There is no evidence that the mules referred to in the evidence were “the property of P. T. Stiers,” nor is there any evidence that the defendant Stiers did cruelly beat, torment, wound, injure or deprive of necessary sustenance, or caused to be deprived of necessary sustenance, or needlessly kill any useful animal. All the evidence tends to prove is that certain mules on certain farms were in “poor” condition and some of them died. This was insufficient to carry the case to the jury.

The judgment below is

Reversed.