Anderson

The defendant was charged with the crime of murder, and found guilty of manslaughter, with a recommendation to the mercy of the court. He was sentenced to be imprisoned in the state prison for the term of six and a half years, and has appealed from the judgment and an order denying his motion for a new trial.

*33 It was clearly proved at the trial that the defendant committed the homicide charged, and the only defense was that under the circumstances shown it was justifiable or excusable.

It is claimed that the court committed several errors, prejudicial to the defendant, in its rulings upon the admission and exclusion of evidence, and in the giving, modifying, and refusing instructions to the jury.

1. M. T. Steinbrum and Mrs. Steinbrum were witnesses for the prosecution, and gave damaging evidence against the defendant. On cross-examination the former was asked: “Didn’t Mr. Donohue tell you . . . . in the presence of Mr. Fisher, that Anderson had made remarks about your family and others” ?

He answered: “ I don’t recollect whether he did or not.” Counsel for defendant then said: “Well, I will make the offer to prove by the witness Fisher and the witness Morgan that these…