Conkling

The appellant has been convicted of murder in the first degree, and sentenced to imprisonment for life. He made a motion for a new trial, which was denied, and now appeals from the judgment and order denying such motion.

Deceased was in the possession of a certain tract of land as a renter. A road passed over this land which defendant and residents of the neighborhood were *620 accustomed to travel going to and from the postoffice and trading station. Deceased placed a fence across this road for the purpose of stopping travel thereon. Upon a certain Friday defendant met the deceased, his brother and the owner of the land, at the point of obstruction, and, after heated language, threats, etc., passing between the parties, the defendant was prevented from continuing his journey, and was forced to retrace his steps. A day or two later he bought a rifle, and within a day or two thereafter, not in the presence of deceased, he went and tore down the fence erected across the road. Subsequently, and with but a day or two intervening, he passed over the road and across the deceased’s land, presumably unobserved, upon his way to the postoffice. In the afternoon, upon his homeward journey,…