Appeal from the Sixth District.

Indictment for murder. On the trial, the prosecution introduced two witnesses, Murray and Mrs. Favor. It was shown that defendant and Poole, the deceased,'had been living and working together on a ranch belonging to one Favor; that a week before the killing defendant had been discharged, though sleeping at night in a cabin on the ranch; that on the fourteenth of August, Mrs. Favor, the only witness to the killing, was standing in her door, and saw Poole go out. He requested defendant to leave the ranch, when they

had. some words she did not hear—“ not very angry, not very pleasantPoole turned and walked towards the house, and defendant drew a pistol and began firing at him, discharging five balls ; Poole ran towards the house, and fell dead ; defendant left at once. Witness did not hear Poole use threats ; she heard sounds, but not words; defendant kept advancing as he fired; Poole kept his hands by his side; witness saw no motions. Fifteen or twenty minutes before the firing, defendant came towards the house, and told Mrs. F. he was going to leave the ranch, and requested her to get him some articles he had there. Subsequently, witness became aware that defendant had left a pair of boots in the house, though at the time of the killing she was not aware of it.

Verdict, guilty of murder in the first degree.

Defendant moved for a new trial upon afiidavits—1st, by Murray, the Coroner, to the effect that on the examination of the body of Poole before a jury, some six or twelve hours after the killing, he found in his bosom a butcher knife, and that he did not tell defendant or his counsel of this fact until after the trial; 2d, by one of the jurymen at the Coroner’s inquest, that he also then saw the butcher knife, as stated by Murray; that it was between the over and undershirt, and had the appearance of being recently ground; 3d, by Russel, in substance, that he had known defendant since the spring of 1858, having employed him; that at times his conduct was very irregular; he would sometimes bite his nails, his features become distorted, body and limbs contract and twitch, his eyes roll and stare, and he weeping bitterly, and talking about his mother; that these things, with his general conduct and manner, convinced affiant that defendant was insane ; that he had been working about in affiant’s neighborhood a portion of the time from 1858 to June, 1860, and had the reputation of a peaceable, harmless, quiet man ; never knew him to be intoxicated or in quarrels; and that affiant did not state these facts to defendant or his counsel until after trial—not knowing until since the trial that he was indicted; 4th, by Green, that he was a member of the Board of Supervisors of this county; that witnesses favorable to defendant were ordered away by the people; that in one case a witness, either L. Dow or Robert Deering, complained that he had not money enough to leave,

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