Sherwood, J.
Action under section 3928 for malicious trespass committed by killing a sorrel horse. On the cause being tried the jury found the verdict for plaintiffs for the sum of one hundred dollars, which the court, under the section above mentioned, doubled. The petition- is well enough and states a cause of action under the section of the statute on which plaintiffs rely. As te the evidence, though largely circumstantial, it, coupled with prior threats, etc., of defendant, was sufficient to go-to the jury; and their finding, when this is the case and the proper instructions are given, is final. And evidence of threats, general or special, or verbal indications of a similar nature, of the intended commission of a wrongful or criminal act, are admissible in both civil and criminal eases. Carver v. Huskey, 79 Mo. 509 ; State v. Dickson, 78 Mo. 438; State v. Grant, 79 Mo. 113, and cases cited;
The instructions given very fairly presented the matters in issue to the jury, so far as the defendant is concerned ; indeed, it may be said that they are too favorable to him; for while those for plaintiffs placed on the latter the-burden of proof in order to recover, the firs tins truer f.ion for the defendant told the jury that before the plaintiffs could recover, the law demanded that the plai n tiffs should show “by clear and certain proof that defendant did maliciously kill,” etc. This is almost equivalent to saying ’■’■beyond a reasonable douM.” ■■ ,
I have no fault to find with the fourth instruction given at the instance of plaintiffs, in relation to the sufficiency of circumstantial evidence. Plaintiffs’ evidence was almost, if not altogether, composed of such evidence, and they had the right to have an instruction as to thy force and effect of such evidence, and the one given was hot a comment on the evidence. • i
I come now to defendant’s motion for a new trial, •all other points embraced in it having been sufficiently discussed already, except that in relation to defendant’s having been surprised at the testimony of plaintiffs and their sons. It .is enough to say on this point, that the affidavit does not meet the requirements of the law in such cases. (1) There is no statement therein that the verdict is unjust or that defendant has merits. Meechum v. Judy, 4 Mo. 361. (2) The affidavit of Pharis was nqt produced to show whether his testimony would establish that plaintiffs and their sons swore differently, onthe trial before him, to what they did in the circuit court in -relation to the horse being “hauled on a wagon and dumped •pff,” etc. The information in such cases must come •directly from the affidavit of the witness to whom the .applicant for a new trial refers ; or there must be good -cause shown for failing to do so. (3) The evidence .qf Pharis, even if brought forward, would have been merely ■cumulative on the point mentioned. (4) It does not appear that Pharis’s testimony would have been so mat.erial as to change the result, if a new trial were granted. Caldwell v. Dickson, 29 Mo. 227; State v. Ray, 53 Mo. 345. For these reasons judgment affirmed.
All concur.