There was evidence tending to show that the deceased came to his death by the hands of the defendant. This fact, we understand, is not contested by counsel in this court and was not in the court below. There were no witnesses present at the killing, and the attendant facts are wholly established by circumstantial evidence. It occurred under circumstances tending to establish the conclusion that defendant had either way-laid the deceased or had sought an opportunity for a conflict, choosing his ground and manner of attack. Between the parties open and most vengeful hostility existed: It was proved that the deceased had often threatened the life of defendant, and had come from Nebraska, whence defendant had removed, where he had often made threats against de
The defense which the prisoner seems most, if not wholly, to have relied upon is that the hilling was doné in self-defense.
The objections urged against the conviction will be considered in the order we find them presented in the brief of counsel.
1. jtjby: misconcluctof: prejudice. I. It is first insisted that the District Court erred in overruling a motion to set a,side the verdict based upon the ground of improper conduct of the jury. Separate affi- , ,. davits oi two jurors were filed m support ol tins motion, to the effect that, during the consideration of the case by the jury, one of that body stated that he was acquainted with deceased, who wras a boastful young man but innocent and quiet in his disposition, and that if he had made threats against defendant, he had no intention to carry them out.One of the affidavits also states that two of the jurors at the same time insisted that defendant’s motive in taking the life of deceased was found in the fact that deceased was a witness against defendant’s brother-in-law, who was charged with some crime. The affidavits show that these matters were urged in conversation between certain of the jurors, but it is not shown to, what extent this conversation extended or what number of jurors heard it. There is no attempt to show, and no claim made, that any one of the jurors, either those that made the statements or those that heard them, were in the least degree influenced by them in assenting to the verdict. So far as the matters are presented in the affidavits, it is not averred that they had the least effect upon the jury or any
Other cases are cited by counsel to the effect that improper evidence received and considered by the jury, as when counsel of one of the parties delivered to them a bundle of depositions, a portion of which were not in evidence, will vitiate the verdict. In such case the presumption would be that the illegal evidence improperly admitted would influence the minds of the jurors, as they would regard it as proper evidence to be considered by them. But the facts of the case before us do not authorize the application of the rule announced in their authorities.
2. evidence: error^yiiiiout prejudice. II. Certain evidence of threats made by deceased against defendant, which had not been communicated to defendant, was excluded from the consideration of the jury, l-l Is n°l necessary to determine as to the correctness 0f ruiing 0f district court, for, in our judgment, if it be regarded as erroneous, the ruling was without prejudice to defendant. Evidence of repeated threats of the same character of which defendant had received information was submitted to the jury. They doubtless considered this evidence and .permitted it to have its proper effect, which could not have been different had the excluded evidence been admitted.
IY. The counsel of the prisoner next urge that the court erred in refusing to permit him, through his attorneys, to make an opening statement of his case to the jury. The record fails to show that the district court so ruled. There is, therefore, no foundation for this objection; it demands no further notice.
Y. A witness was asked to state what she knew about the deceased carrying weapons with him. She was not permitted by the court to answer the question. If it be.conceded that the question should have been answered, and the evidence submitted to the jury, no prejudice could possibly have resulted from the ruling of the court. It was abundantly proved by more than one witness that deceased, in addition to threats against the defendant, was armed, and of this fact defendant was fully advised, and that when his body was discovered there was found upon it two revolvers. Of the fact sought to be, elicited by the excluded evidence, there could be
■ No other questions are presented in the argument of counsel. As required by the statute^ we have carefully' examined the whole record, but have failed to find any ground upon which the judgment upon the conviction can be disturbed.
Affirmed.