#### PEOPLE v. THEOBOLD.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Expert Evidence—Form of Question.

In a prosecution for mutilating a horse by tearing out the tongue, where the defendant testified that the tongue .was bitten off by the horse while he had hold of it, it is proper for the prosecution to ask a veterinary surgeon, “If the tongue was in the position which the defendant testified it was, would it be possible for the horse to bite it off?” as such question is based, on the truth of defendant’s testimony.

Appeal from court of sessions, Jefferson county.

Joseph A. Theobold was indicted for the crime of maiming and mutilating a horse, contrary to the provisions of Pen. Code, § 655. The offense was alleged to have been committed March 9, 1895, at the city of Watertown, and to have consisted in willfully and cruelly pulling or tearing the tongue from the month of such animal. From a judgment affirming a judgment of the recorder’s court, rendered on a verdict of a jury convicting defendant, defendant, appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Thomas F. Kearns, for appellant.

V. K. Kellogg, Dist. Atty., for the People.

PER CURIAM.

When we apply our common knowledge and experience to the condition disclosed by the proof in this case, it is somewhat difficult to understand clearly how the injury to the defendant’s horse occurred. Yet, when wé consider all the evidence, we are unable to say that the defendant’s treatment of the horse was not unjustifiable, or that he was not guilty of such torture, mutilation, or maiming as to constitute a crime under the provisions of section 655 of the Penal Code. That the animal’s tongue was either pulled out by the defendant, or bitten off by the animal herself while the defendant had hold of it, is undisputed. If the evi*499deuce of some of the witnesses for the prosecution was relied upon, the jury was justified in finding that the defendant tortured, maimed, or mutilated the animal, and that he was guilty of the offense charged. Under the circumstances and facts disclosed by the evidence in this case, we are of the opinion that the question of the defendant’s guilt was for the jury, and that we should not disturb the decision of the court of sessions upon the ground that the evidence was insufficient to sustain the verdict or judgment.

The only other question which we deem it necessary to consider relates to the admission of evidence. On the trial the people called Dr. John A. Bell as a witness, who, after having testified that he resided in Watertown, was a veterinary surgeon, graduated at the Ontario Veterinary College, had practiced 15 years, was familiar with the anatomy of the tongue, and had heard the defendant testify, was asked: “If the tongue was in the position which the defendant testified it was, would it be possible for the horse to bite it off?” This was objected to as “incompetent, immaterial, and irrelevant; reopening case; no evidence that tongue was in position that defendant testified it was; and not proper hypothetical question.” The objection was overruled, and the witness answered: “I think it impossible. I do not think a man can force a horse’s tongue back far enough to bite it off with the grinders.” The inquiry presented by this ruling is whether this question was proper, or whether it should have been an hypothetical one. . We think it was proper. It did not call upon the witness to determine the truth of the defendant’s evidence, but simply to state whether, if his testimony was true, it was possible for the animal to bite off her tongue. It was based upon the assumed truthfulness of the defendant’s own testimony, to which he could not very consistently object. It called for an opinion based upon clearly assumed facts. This ruling was, we think, within the principle of the cases of McCollum v. Seward, 62 N. Y. 316, and Seymour v. Fellows, 77 N. Y. 178. The case at bar is clearly distinguishable from those cited by the appellant where the rule has been stated which requires that hypothetical questions should be put to expert witnesses. In those cases the witness was required to consider the evidence of various witnesses, and to distinguish that which was material from that which was irrelevant. But in this case none of those objections exist. The question directed the attention of the witness.to the testimony of a single witness as to a single fact, and was not, in effect, different than it would have been if an hypothetical question had been put assuming that fact.

We have examined the other questions raised by the appellant, but have found none that would justify a reversal. Judgment of conviction affirmed, and, after the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Jefferson county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.