Overacker

Defendant was convicted of the crime of murder, and the jury, in the exercise of the discretion left to it, fixed his punishment at imprisonment in- the state prison for life. Judgment followed accordingly. Defendant appeals from the judgment, and from an order denying his motion for a new trial.

On the morning ,of January 13, 1910, defendant fired upon Gustavus A. Winn, a neighbor, with a rifle, inflicting wounds from the effects of which Winn died almost immediately. For a number of years prior to the tragedy the two men lived on adjoining ranches. The land of defendant was above the land of Winn, and the natural grade or fall was from the land of the former toward and upon the land of the latter. A depression, called by many of the witnesses a “slough,” marked a watercourse extending upon and through the land of Winn, into which some portion at least of the surface and storm waters from the land of defendant had been accustomed to flow. It is difficult to ascertain from the record just what the course of this slough or drain was, as many of the witnesses referred to a map or diagram when testifying before the jury, and the points, lines and directions indicated by them are not…