concurring:
In regard to the third point discussed in the foregoing opinion, I consider it doubtful whether the record shows satisfactorily the materiality and relevancy of the answers made to MeWorthy’s inquiries in regard to the deceased. But I am satisfied that if any error was committed in admitting them, it could not possibly have injured the defendant. All that those answers (aside from those that were stricken out) had any tendency to prove was that the deceased had not been seen at places away from the mining camp subsequent to the time when, according to the de*25fenclant’s own statement, he had seen him killed and buried at tbe camp. If tbe evidence was hearsay, it tended only to prove a fact conceded by defendant — that Sharp, tbe deceased, bad not left tbe camp.
I concur in tbe judgment and in all other particulars in tbe opinion of the chief justice.
Leonard, J., having been of counsel at a former trial of tbe above cause, did not participate in tbe foregoing decision.