Evans

The defendant was convicted of murder, and appeals from the judgment and an order denying him a new trial.

It was clearly proved that on June 15, 1893, Mishael Tovey, a messenger for Wells, Fargo & Co., while seated by the side of the driver on a stage going from lone to Jackson, in Amador county, was shot and killed by a man who stood behind and was partly concealed by a buckeye tree growing within ten or twelve feet of the roadside. The .circumstances leave no doubt that the killing was premeditated, and that the crime was murder of the first degree, the only dispute being as to the identity of the slayer. He was distinctly seen, at a dis *127 tance of not more than twenty feet, by the driver of the stage, and by a passenger who sat behind the driver on top of the stage; but his face was blackened with charcoal, and the lower part of it concealed by the foliage of the tree behind which he stood, and, while the stage driver testified positively that the defendant was the man,-the passenger was equally positive that he was not. - To corroborate the driver, the prosecution introduced evidence of remarks in the nature of threats by the defendant against the deceased, made prior to…