When the evidence in support of a criminal prosecution is so defective or so weak that a verdict of guilty based upon it can not be sustained, the jury should be instructed to return a verdict of not guilty. Such a case arises when there is a material variance between the allegations and the proof, as when one is indicted for stealing a black horse and the proof is *429that he stole a white one; or when one is indicted for maintaining a nuisance in one place and the proof is that he kept a nuisance in another and an entirely different place; or wdien there is a total want of evidence to support some material allegation, or ‘the evidence in support of if is so slight that a verdict based upon it could not he allowed to stand. In all such cases it would undoubtedly bo the duty of the court to instruct the jury to return a verdict of not guilty; and a refusal to so instruct them would be a valid ground of exception.
But we do not regard the case now before us as one in which such an instruction could properly be given. There is no variance between the allegations and the proof; nor is the evidence so defective or so weak that a verdict of guilty resting upon it could not be allowed to stand. On the contrary, we think the evidence was amply sufficient to justify the jury in finding the defendant guilty. The exception to the refusal of the court to instruct the jury to return a verdict of not guilty must, therefore, be overruled.
And the exception to the overruling of the motion in.arrest of judgment must be overruled. The motion is based on the alleged insufficiency of the indictment. But the law court has not been furnished with a copy of the indictment, and has no means therefore of judging of its sufficiency. And this exception is not alluded to in the argument of the defendant’s counsel. This exception may, therefore, be regarded as waived and overruled for want of prosecution.
Exceptions overruled.
Judgment for the state.
Peters, C. J'., Virgin, Emery, Foster and Haskeee, JJ., concurred.