Appeal from the Fifth District.

Appellant was indicted and convicted of murder in the first degree, for killing A. S. Carver.

It appeared that Costello was working a mining claim near Gold Hill; that three men by the name of Murphy, Blanchfield, and Carver—a brother of the deceased—owned an adjoining claim; that Costello worked his claim by means of a ditch used to take water from the main mining ditch of the locality; that Murphy and associates objected to the operations of Costello, alleging that he was running tailings down on them, which damaged them. The day previous to the killing, Blanch-field and some others, Murphy not being in company, went upon the ground to cut and fill up the tail-race and ditch of Costello. He forbade the proceeding, and, after some controversy, it was abandoned for that day. The next day, Douglass, a hired man of Murphy and associates, went to the cabin of Costello, close by the scene of action, and informed him that Murphy and party were going that morning to fill up his ditch, but hoped that he would not think hard of him, Douglass, as he was only a hired man.

Costello had a loaded gun in his cabin, and told a man in his employment to bring the gun, and place it at a point named, near the ditch, as Murphy and party1 were no doubt armed, and would probably attempt to jump on him. Costello then proceeded to his ditch, when he found Murphy and party engaged in filling it up and destroying it. He forbade their operations. Considerable conversation occurred. Costello offered to leave it to a miners’ meeting, or arbitrators, which Murphy and associates refused, telling him he could go to law. Costello offered to cut a ditch, so as to prevent injury, which was declined, Blanchfield saying it would not do. He then offered to clean up his tail-race, into which they were then shoveling dirt, and if it did not pay much, he would quit, and go away—but if it did pay, he would so work as not to cause Murphy and party any injury. This was declined, Murphy telling him he had had time enough to clean it up, and daring him to put a pick in the ground. In the meantime, the deceased, Carver^ was shoveling dirt to Murphy, who was engaged in treading it into the ditch. All the while the work was thus going on, Murphy had an overcoat folded up lying close by him, which he moved about with him as he changed his position, which contained a pistol, which one of the witnesses saw, Murphy so handling the coat as to indicate that it contained arms.

After his propositions of compromise had been declined, and the parties were proceeding to fill up his ditch, Costello left the ground, but immediately, or in the course of two or three minutes—the witnesses on both sides testify—returned with his gun, and called out, “ Leave my claim, you have damaged me enough,” at the same time, or very soon after, leveling his gun upon Murphy. The weight of evidence is, that Murphy, Blanchfield, and Douglass ran, but that Carver, the deceased, advanced towards the coat, at which Costello called out, repeatedly, “Don’t touch that coat,” and brought his gun round on Carver, and as he approached the coat, which was a few feet off, and got his hand on the pistol, or coat, fired and shot Carver in the back of the head, when he fell, exclaiming that he was shot. There is some conflict in the testimony as to the position of Carver when he was shot.

During the trial, defendant offered John Boyle as a witness to prove that the prisoner was the owner, and in the lawful possession of a certain mining claim, together with the flumes and tail-race connected therewith, and that, at the time of the killing, the deceased, together with three other persons, was engaged in forcibly cutting said tail-race, and otherwise destroying his, defendant’s, said property. Plaintiff objected, and the Court refused to allow the testimony. Defendant excepted, and appeals.