The respondent was- convicted in the court below of the offence of killing a wild deer, not having horns. Upon the whole evidence, including that of the respondent, the court ruled and instructed the jury that the deer in question did not have horns, within the meaning of the statute which permits the killing of deer having horns, during the open season. In this there was no error. The respondent testified that the bunches, which he called horns, did not protrude through the skin of the deer; and the other testimony had but one tendency, and that was that no horns or other substance protruded through the skin. Such being the undisputed evidence, it became the duty of the court to rule upon the question whether the deer had horns, within the meaning-of the statute; and its ruling, that the substances under the skin of the deer, which some of the witnesses called horns, was correct. It was not intended by the enactment to permit the killing of deer during the open season, except deer that have horns that protrude through the skin so that they can be seen; and it can be ascertained and known that the deer have horns without cutting through the skin of the deer and examining the substance thereunder to ascertain the fact. We, therefore, hold that a deer which has no' horns protruding through the skin so that they can be seen and ascertained to be horns *177is not a deer “having horns,” within the meaning of the statute; and that it is unlawful to kill such a deer.
Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.