Freeman

The defendant, who was convicted in the superior court of murder in the first degree, and sentenced to death, appeals from the judgment, and from an order denying his motion for a new trial.

Of the numerous assignments of error contained in the record, only four have been insisted upon by counsel in their oral and printed arguments, and to these we shall confine our attention.

A brief outline of the .facts of the case will conduce to a clearer understanding of the questions to be decided: The defendant, Freeman, the deceased, Mark Feeny, and two other men, Terrill and Wilks, were employed on a ranch by one De Kay, — Feeny as cook, the others as laborers. These men occupied a small house on a ranch four miles distant from the home ranch of their employer. A day or two prior to March 6, 1890, Terrill went to the home ranch, leaving only Freeman and Wilks at the other place. The weather at this time was too rainy to admit of plowing (the work in which Terrill, Freeman, and Wilks had been engaged), and having no work to do on the afternoon of March 6th, Freeman and *361 Wilks took their shotguns and went hunting, leaving Feeny alone on the ranch.

The testimony shows that Feeny was…