Phelan

The defendant was convicted of murder in the second degree, but recommended by the jury to the mercy of the court. He was sentenced to be imprisoned for twenty-five years, and appeals from the judgment and from an order denying him a new trial.

Various errors are assigned upon the rulings of the superior court, misconduct of the district attorney is charged, and it is also contended that the evidence adduced at the trial was entirely insufficient to warrant or sustain the verdict.

The voluntary killing was admitted by the defendant, but the claim was made that it was done in necessary self-defense. This plea rests mainly upon the testimony of the defendant himself, for there was no eye-witness to the encounter, in which the deceased was instantly killed, save the parties; and the defendant’s account of what then took place is corroborated by the direct evidence of only one witness who heard the shooting, and testifies to the number of shots fired and the order in which the lighter and heavier reports occurred. Aside from this the case for the defendant consisted in the proof of numerous and recent'threats by the deceased against his life. Upon this point it is conceded by…

concur in the judgment and in the opinion of the chief justice. I desire to say, however, that if the testimony were to be considered simply as it stands in the cold printed record, without any reference to the appearance, manner of testifying, et cetera, of the witnesses, I would not feel sure in holding that it warranted a conviction. But the credibility of the witnesses rests with the jury, and, as it depends upon many things which cannot be reproduced here, I do not feel that this court would be justified in setting aside the verdict on the ground of want of evidence. I agree with the chief justice that there were no errors of law calling for a reversal.

Rehearing denied.