Thomson

The appellant was convicted of murder in the first degree, and now appeals from the judgment and order denying his motion for a new trial.

At the trial he admitted the killing, and insisted that the homicide was committed in self-defense.

The prosecution, against the objection of defendant, offered in evidence a United States patent to the tract of land upon which the deceased was killed, for the purpose, ms the district attorney stated, of showing that “he was killed upon his own land.” There was no question of defense of property or habitation involved in the trial. *509 The plea was a plea of self-defense, arising from a threatened personal injury; and it was entirely immaterial and foreign to the issue on trial whether the deceased was killed upon his own land or upon the land of another. Such fact could have shed no possible light upon the question of murder or justification for the commission of the homicide. While the assignment of error has merit, owing to the views we entertain upon other matters we do not deem it necessary to decide the question as to whether the error is of such a character as to justify a reversal of the judgment.

The witness Norris was an important…

I concur in the judgment of reversal, on the ground that the court erred in giving the instruction referred to in the opinion of Mr. Justice Garoutte. It was error to direct the jury that in weighing the testimony referred to in the instruction, the jury must “ consider the remoteness of it, and the difficulty of meeting it, owing to the lapse of time, by contradictory evidence, and weigh it carefully.”

If the testimony was given by a credible witness, and was not unreasonable or improbable in itself or when compared with other established facts in the case, it was the duty of the jury to accept and act upon it, and they should have been so instructed; and it was not proper for *514 the court to weaken the force of such testimony by the suggestion that if the witness had placed the occurrences testified to as of a later date, the prosecution might have been able to contradict.