Newcomer

The defendant was charged with tbe murder of one Caleb Dorsey, and was convicted of murder in tbe second degree. He appeals from tbe judgment and from an order denying his motion for a new trial.

Tbe appellant bases bis contention for a reversal upon tbe grounds: 1. Insufficiency-of tbe evidence to justify tbe verdict; and ¾. Errors committed by tbe court in its instructions to the *266 jury. As in our opinion, tbe judgment must be reversed upon tbe second ground, it is not necessary to consider tbe first ground.

Altbougb tbe evidence taken at tbe trial occupies a good many pages of tbe transcript, a great deal of it is unimportant. Tbe material evidence and tbe real facts to be determined by tbe jury lie witbin very narrow limits. In order to illustrate tbe bearing of tbe instructions objected to upon tbe real merits of tbe case, it is proper to make a very short statement of tbe conditions under wbiclr tbe homicide was committed. Tbe appellant and tbe deceased were mining partners, and joint owners of certain mining property upon which at tbe time of the homicide they were conducting mining operations. There was a small cabin on tbe premises in which appellant slept and ate;…