The hog killed by defendant is not identified positively as the hog of the prosecuting witness, George Brown. A strong case of circumstantial evidence is made by the testimony of the State’s witnesses, and, if no doubt had been thrown upon it, it would unquestionably have been sufficient to support the verdict and judgment. It is also true that the defendant’s witnesses contradicted each other in several particulars. We concede, as stated, that the case made by the State was strong and only lacked a positive identification of the hog to make it conclusive. On his motion for a new trial defendant produced the affidavits of three witnesses to facts which if true were, in connection with defendant’s evidence, almost if not quite as strong as the case made by the State, to prove that Brown’s hog had not been killed by defendant at all, but was alive on the Bennett farm within a few miles of Brown’s home some time after defendant killed the hog for which he was tried, and up to within a very few days of the trial.
We are of opinion the court, under the circumstances of the case, should have granted the new trial.
There is another matter made to appear by the record and complained of by counsel for appellant in the brief, which we feel called upon to notice. After the verdict had been agreed upon it was returned into court and received and entered upon the minutes. In making up the judgment the clerk has incorporated into it, as he is required to do (Code Crim. Proc., Art. 791), a verdict which he says is the one returned by the jury in the case. But, when compared with the verdict first received and entered upon the minutes, the two are found to not correspond in several particulars. Words in the one are omitted in the' other, and some words are used in the verdict incorporated into the judgment which are not to be found in the other verdict, If after its return the verdict was amended, then the the record should have shown it, so that the apparent incongruity would have been explained. If it was not amended and the *230clerk in setting it out has not copied it correctly (which his use of quotation marks most clearly implies), but has substituted other words, then his action is inexcusable, and such unwarranted tampering with the verdict should receive at the hands of the coúrt the condemnation it merits. It is the duty of the (’ark to copy, where he is required to do so, all records verbatim et-literatim, and especially so-when he. assumes to use quotation marks, which indicate exact language.
Because the court erred in overruling defendant’s motion for a new trial, based upon the newly-discovered evidence,' the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered May 23, 1883.