Merely to discharge a musket at any time is no crime at common law; it becomes an offence in those cases only in which it is prohibited by statute.

The statute enacts, “ that if any person or persons belonging to either of the militia companies in this state, *387shall fire any field-piece, or discharge his musket or pistol, or suffer the same to be done by others, on any regimental, battalion, or company days of exercise, excepting by order of a commissioned officer, he shall, for each offence, forfeit and pay a fine of four dollars.”

By the bill of exceptions, it appears that Hungerford offered witnesses to prove that after said'company was dismissed on' said day, the commissioned captain of said company ordered and directed him to discharge and fire his said musket; and'on objection, the county court decided that he could not by law introduce said testimony, nor any testimony to prove any order, direction, or permission of said captain after the company was dismissed for the day; and said testimony was not admitted.

It is urged by the counsel for the state, that on a field day, an officer has no . military command after the company is dismissed from the ground, and that his orders, having then no force or authority, cannot avail to excuse the delinquent.

What command an officer .of militia on a day of review has over his men .after his company is dismissed, and what power he may have to enforce any particular orders he may issue, are points not necessary to be investigated in the determination of this case. Firing by the order and direction of a commissioned officer, during any time in the day, is not a firing without orders, and cannot constitute the offence charged in the information, and prohibited by the statute.

The testimony offered was proper and relevant on the issue, and ought to have been admitted before the county court.

Judgment affirmed.