Appeal from the County Court of Tulare County.

The defendant was indicted for stealing a steer, the property of one Houston.

At the trial, two witnesses testified that they found the defendant and a Spaniard named Alipas in “ Greasy Cove,” cutting up the animal and jerking the meat, the defendant claiming the animal as his own. ■ Noticing that the head, ears, and the portion of the skin which bore the brand were missing, one of the witnesses, who was armed with a revolver, asked the defendant where they were. He declined to tell, and thereupon the witness kicked him over. The witness then asked the Spaniard, who told him to “look up the branch.” On going in the direction indicated, the head was found in the water, and the ears and brand were found concealed in a hollow tree. Counsel for the defendant objected to the introduction of the testimony in regard to what the Spaniard said, upon the grounds that it was irrelevant, no conspiracy having been shown, and that the declaration was not shown to have been voluntarily made; but, on the contrary, it appeared to have been made under duress. The objection was overruled, and the defendant, by his counsel, excepted. The Spaniard Atipas testified that he was in the employ of the defendant; that they had started out to kill one of the herd belonging to the defendant; that he—Atipas—lassoed the steer, tied it up until the defendant looked at it and told him to kill it, which he did. The defendant testified that he had cattle running in that place; that' the Spaniard knew his brand and mark; thát the Spaniard killed the animal before the defendant saw it, and that he did not know who concealed the head, ears, and brand. The argument to the jury was closed by counsel employed to assist the District Attorney. The tenth instruction referred to in the opinion was as follows: “If the jury believe, from the evidence, that the defendant did not directly commit the offense alleged, but that he stood by and aided, abetted, or assisted another person to commit the offense^or that he was not present, but had advised and encouraged another to commit the offense, the defendant cannot be found guilty under the indictment, but must be acquitted.” The second instruction, given at the request of the prosecution, was, in substance, that if the jury believed that the ears and brand were cut off and hid away, they might take those facts into consideration in determining whether the defendant intended to steal the animal. The defendant was convicted, and he appealed from the judgment, and from an order denying him a new trial.

The other facts are stated in the opinion.