¶1Appellant, Louis Voight, and John Schwietzer were jointly or separately (the record does not show which) indicted for the theft of a cow belonging to S. H. Mulkey. Voight was separately tried, convicted, and appeals. Schwietzer was tried at the same term and acquitted, and his affidavit was relied upon by the appellant in his motion for a new trial.
¶2Two questions are presented for our discussion: 1. Does the evidence support the verdict ? 2. Did the court err in refusing a new trial, based upon the affidavit of Schwietzer ? The evidence clearly shows that Voight was the servant or employe of one Albert Brookser, who was engaged in the slaughtering business.
¶3The issue was then presented (he, the defendant, being caught assisting in the slaughter of the stolen cow) touching the defendant’s knowledge of the fraudulent intent and purposes of those with whom he was engaged. The evidence, viewed separately from the facts contained in the affidavit of Schweitzer, does not, in our opinion, carry the case beyond one of strong suspicion. Viewed in the light of this affidavit, the suspicious facts are very satisfactorily explained and lose their criminating tendency.
¶4We are therefore of the opinion: First. That the evidence does *28not support the verdict. Second. That the court below should have granted a new trial under the facts in this case, based upon the evidence contained in the affidavit of Schweitzer.
¶5The Reporters will give the evidence in full.
¶6The judgment is reversed and the cause remanded.
¶7Reversed and remanded.
¶8Opinion delivered October 14, 1882.