The record in this case shows that the
respondent and his wife, Julia Coffman, resided at An Train, *6in the township of Onota, in the county of Schoolcraft, on the twenty-fourth day of August, 1884; that on that day he shot and killed his wife, and was thereupon arrested upon a complaint and warrant charging him with the crime of murder for killing his wife. .He was taken before the justice who issued the warrant, had his examination, was bound over for trial on the same charge, and in default of bail, was sent to jail, until the sitting of the circuit court at Manistique, in January term, 1885. At the opening of the court at said term, the prosecuting attorney tiled an information against the respondent for the crime aforesaid, and on being arraigned, he appeared by -counsel, and moved the court to quash the information, on the ground — -first, that a proper preliminary examination is not shown by the files in the case; nor that such examination was waived ; second, that it does not appear from the files that the defendant has ever been arrested for, or charged with the crime for which he was arraigned, except as appears in and by the information.
The objection was properly overruled. The record shows a sufficient complaint and warrant, and an examination had before the magistrate who issued the warrant, and that several witnesses were examined in behalf of the People, and the justice makes ¿ commitment, in which he states that he finds the crime charged has been committed, and probable cause to believe the respondent guilty of the commission thereof. This shows a sufficient examination: Turner v. People, 33 Mich. 364; Haywood v. Johnson, 41 Mich. 605; State v. Nerbovig, 24 N. W. Rep. 321. The proof of loss of the papers showing a preliminary examination was sufficient, and it was entirely competent to make parol proof of their .contents : 1 Greenl. Ev. § 509; Com. v. Roork, 8 Cush. 210; Simpson v. Norton, 45 Me. 281; Hall v. Manchester 40 N. H. 410. The information filed was fully authorized. The court must necessarily go outside of the regular files when the papers are destroyed, to ascertain whether the proper preliminary steps have been taken necessary to place the respondent on trial, and no evidence otherwise competent could be rejected for that reason.
*7We find no error in overruling the respondent’s challenge to the array of jurors. It was unimportant that no list of jurors was returned from the township of Burt, and also that there was neglect on the part of township officers in making the return of names, before the drawing of the first jury, from the township of Munising: How. Stat. §§ 7554, 7555, 7567, 7575; Thomas v. People, 39 Mich. 309. It will be noticed that section 7567 did not provide for the return of the names of jurors drawn, to the packages, until all the packages were exhausted, and the statute expressly provides that at the next succeeding drawing of jurors they shall commence to draw from the package next in numerical order to the one from which the last name was drawn at the last preceding drawing, and in the sixth subdivision of the section it says the same proceeding shall be had as often as may be necessary, until the whole number of jurors required shall have been drawn, and there is no provision for the returning of the names of the jurors to the packages until the list returned shall have been exhausted.
We see no reason why respondent should complain that more evidence of the res gestee was not offered. The People had shown, by two witnesses who are unimpeached, that they were present and saw the respondent take his gun and shoot his wife dead, she being only five feet distant from him at the time; and the respondent does not deny that he killed he?-, but claims he was so drunk that he did not know what he was doing at the time. Certainly the People could not do less; but why the respondent should require more, or how he could have been benefited thereby, is not exactly apparent.
The question put to witness Black, on rebuttal, was competent. While the answer was not strictly responsive, no motion was made to strike it out for that or any other reason, and no error was committed in overruling the respondent’s objection to the question.
The other assignments of error relate mainly to the action of the circuit judge in charging the jui-y, and to his refusals to chai’ge. We have examined them carefully, and have *8been unable to discover any error. The circuit court, we think, gave the case to the jury on the theory of the defense quite as strongly as the circumstances and testimony in the case will warrant, and the judgment must be affirmed.
The other Justices concurred.