¶1delivered the opinion of the Court.
¶2The Court is of opinion that it was properly left to the jury to consider whether, from the circumstances of the case as disclosed in the evidence, the relation of Sally Fowler as to the violence done her at her own house, wás made in the presence of the defendant Perkins or not. That as there was evidence of his being corporally present, placing that circumstance as a fact beyond dispute; and some evidence of his being mentally present, in as Dutch as that, although inebriated, he was not disqualified to hear or understand; it was fit for the jury to decide whether the rational man was so far present as to assent by his silence to the narration of Sally Fowler. In the admission of the said evidence there was no error, and the judgment must he affirmed.