Dice

The defendant, informed against for the murder of his brother in law, Grant Smith, was found guilty of murder in the second degree. From the judgment and from the order denying him a new trial he prosecutes his appeal.

*191 The first contention of his counsel, and the one most strenuously urged upon the attention of this court, is that the verdict was contrary to the evidence, and that under the evidence it clearly appeared that the killing, which is admitted, was done in necessary defense of defendant’s wife and of himself.

The salient features of the case are the following: Mrs. Dice owned a quarter section of land, and had used upon it for pnrposes of irrigation water taken from a ditch. Some years before the date of the tragedy the upper portion of this ditch had been abandoned. A new ditch had been constructed from the source of the water supply, which connected with the old ditch on or near the land of Mrs. Dice, the water from the point of connection flowing through the old ditch. Grant Smith had aided in the construction of the new ditch, and at the time of the homicide was living above the land of Mrs. Dice, the ditch passing through his land and about one hundred feet…