
    DANIEL NARCOME et al. v. STATE.
    No. A-1848.
    Opinion Filed December 13, 1913.
    (136 Pac. 783.)
    HOMICIDE — Appeal—Record. In a prosecution for murder, the defendants were convicted of manslaughter in the first degree. Held, that no reversible error was committed upon the trial.
    
      Appeal from District Court, Hughes County; John Caruthcrs, Judge.
    
    Daniel Narcome and Jim Franks were convicted of manslaughter, and appeal.
    Affirmed.
    
      Crump & Skinner, for plaintiff in error.
    
      Chas. West, Atty. Gen., Smith C. 2Jatson, Asst. Atty. Gen., and Joseph L. Hull, Sp. Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiffs in error were convicted of manslaughter in the first degree, upon an information filed in the district court of Hughes county, on the 3d day of June, 1912, wherein it is charged that Daniel Narcome and Jim Franks, in said county, did on or about the 6th day of April, 1912, commit the crime of murder, bjr shooting and killing one Isaac Kernal. On the 10th day of June, 1912, in accordance with the verdict of the jury, the court sentenced the defendants to imprisonment in the penitentiary for the term of five years each. To reverse the judgment, the defendants appealed by filing in this court on October 9, 1912, a petition in error with case-made.

The evidence shows that Ben Reed, John Marks, and Isaac Kernal, the deceased, full-blood Indians, left the town of Holden-ville about sundown on the day of the killing, and were overtaken at the edge of town by Daniel Narcome .and Jim Franks, Indians, and that all went along together for about two miles. There Ben Reed had a fight with the two defendants. After that the defendants rode on ahead. About five miles south of Holden-ville, near the home of Narcome, they met the defendants standing by the side of the road, and Narcome had a shotgun and fired, hitting Isaac Kernal in the breast. Franks shot at them with a pistol. Ben Reed and John Marks jumped out of the wagon and ran away. The next morning, the body of Kernal was found lying upon the spring seat of the wagon.

The defendants took the stand as witnesses in their own behalf. Narcome testified that they were all drinking medicine .together at Holdenville that day; that he and Jim Franks left town together and overtook Ben Reed, John Marks, and Isaac Kernal, and he had a fight with Ben Reed; that they met them •again near Dirt creek, and Ben Reed struck him with a pistol; that he had a shotgun and handed it to Jim Franks, and Jim Franks fired the shotgun; that two pistol shots came from the men in the wagon, and he ran away.

The defendant Franks testified to substantially the same state of facts, and that he fired the shotgun at no particular person.

It is claimed that the court erred in refusing to admit an almanac in evidence, offered for the purpose of showing that the moon rose at 11:34 on the night of the killing. The record does not contain the purported almanac, and for this reason no question is presented for this court to pass upon.

Error is assigned upon one of the instructions given, No. 7, and the first part of this instruction is criticised; but no objection was made nor exception taken to this instruction. We see no objection to the instruction as a whole and can only regard the criticism made upon it as hypercritical.

The charge of the court fully and fairly presented the law of the case. A careful examination of the whole case leads to the conclusion that no error has been committed, to the prejudice of the defendants.

It follows that the judgment of the district court of Hughes ■county must be affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur. ■  