The facts sufficiently appear in the opinion. Appellant was convicted of murder of the second degree. He appeals from the judgment, and relies upon the following specifications of error: (1) Insufficiency of the evidence to support the verdict; (2) error of law in not requiring the prosecution to use as part of its case in chief the record of the proceedings taken at the preliminary examination; (3) error in giving fifteen of the instructions (numbered) asked for by the prosecution.
1. It was shown at the trial that the appellant lived at Big Creek, in Lander county. Dougherty, the deceased, was in his employ. They had been at Austin during the day of December 24, 1898, and returned home in the evening together. Deceased was so much under the influence of liquor that he fell off the wagon near appellant's house. Appellant and an Indian woman, with whom he lived, helped him to the house, gave him a chair by the fire, and supper. Appellant then left to care for the team. Soon the squaw ran out of the house, calling for him. He returned, met deceased in the house, armed with a miner's candlestick. A fight ensued, in which he armed himself with a dagger. No one was present except the two men. Dougherty was stabbed five or six times, and died instantly. Appellant received one wound in the neck, and another upon his ear; but there was testimony tending to show that the latter wound was slight, and might have been self-inflicted. A motive for the killing was shown from the fact that deceased had made improper proposals to the squaw a fortnight before, which appellant knew; and when she ran out crying, and calling him, he surmised a repetition of that occurrence. According to appellant's testimony, deceased was the assailant. We will assume that he was. But the jury may have reached the conclusion that the punishment was not in necessary self-defense, but in the execution of an intent to kill. The testimony supports this view. *Page 34
2. We know of no rule of law, and counsel has not referred us to any, by which the court could have required the prosecution to introduce the record of the preliminary examination, or any of it.
3. No suggestion has been made directing our attention to any particular error in any of the instructions mentioned, and for this reason we decline to examine them.
It is ordered that the judgment be affirmed.