McCarthy

The defendant was convicted of murder of the first degree, committed in the killing of one George Fox, and was sentenced to be hanged. He appeals from the judgment and from an order denying him a new trial.

The defense was insanity, the homicide being admitted, and the exceptions urged are based upon certain rulings made on the admissibility of evidence, and directions in law to the jury, bearing upon that defense, which it is claimed were erroneous.

1. Of the objections to rulings upon evidence, the point most relied upon involves several exceptions of the same character arising on the admission by the trial judge of the testimony of a number of witnesses introduced by the prosecution to rebut the showing made by defendant on the subject of his sanity. The objection, in each instance was, that the testimony was incompetent because the witness was not an “intimate acquaintance” of defendant, under subdivision 10 of section 1870 of the Code of Civil Procedure. Each of these wit *258 nesses was examined preliminarily as to the extent and character of his previous acquaintance with the defendant, before any questions were put touching the subject of defendant’s mental soundness,…