Lore, C. J.,
charging the jury:
Gentlemen of the jury:—Walter Radcliff, the defendant, is charged in this indictment with misusing a horse which it is alleged came into his possession under a contract of hire with the owner of the horse, Herbert White, and that the misuse was of such a character, as alleged in the indictment, that the horse was greatly injured and died and that thereby the said owner lost the use of the horse.
The indictment is found under a statute passed April 27, 1891, which reads thus:
“ That if any person having the care, custody, possession or use of a horse, gelding, mare, colt, ass or mule, under and by virtue of a contract with the owner or legal proprietor thereof to hire the same, shall so ride, drive or negligently and carelessly use or care for the same as to kill or cause the death or injury or damage to such horse, gelding, mare, colt, ass or mule whereby the owner or legal proprietor thereof is deprived of the use of the same,” etc.
The defendant in this case does not deny that he had possession of the horse and the use of it by reason of a contract for hire with the owner, Herbert White, nor does he deny that he drove the horse or that the horse died after he had been used by him. But he does deny—and that is his defense—that the alleged death or injury to the horse whereby the owner lost the use of it, was caused by any misuse on his part. He claims that he did not misuse the horse and to that point particularly in this case your attention is directed.
In order to convict the defendant, you should be satisfied from the evidence beyond a reasonable doubt that the death or injury by reason of which the owner was deprived of the use of the horse resulted from the misuse of the horse on the part of the defendant ; that within the terms of the statute he so rode, drove, or negligently and carelessly used the same as to cause the death or injury or damage complained of. If you shall be satisfied beyond a reasonable doubt, that said injury or death did result from his misuse as described in the indictment, then your verdict should be guilty. But if you are not satisfied that the death or injury resulted from such misuse as alleged in the indictment but from some other cause, as for instance from disease, for which he is not accountable, your verdict should be not guilty.
Verdict, not guilty.