ROSS, C. J.
The appellant appeals from a sentence o-f death, having been convicted upon the charge of murdering Jesse G. Danner on the eighteenth day of November, 1913, in Gila county, Arizona. He asks that the judgment be reversed upon numerous grounds. He interposed a challenge to the panel of the trial jury, which was overruled by the court. His reasons for challenging the panel were as follows:
[312]*312“ (1) That the jury has no legal authority to act.
“ (2) That said jury was not drawn according to law.
“ (3) That there is no law authorizing the drawing of said jury in the manner that such jury is drawn.
“ (4) That any verdict rendered by said jury would be null and void.”
Paragraph 1018 of the Penal Code of 1913 provides that:
“A challenge to a panel must be in writing, and be taken before a juror is sworn, and must specify, plainly and distinctly, the facts constituting the grounds of challenge.”
Paragraph 1017 of the Penal Code of 1913 provides that:
“A challenge to a panel can only be founded on a material departure from the forms prescribed in respect to the drawing and return of the jury, in civil actions, or an intentional omission of the sheriff to summon one or more of the jurors drawn. ’ ’
If it was intended to make the challenge in this case as indefinite and uncertain as possible, that purpose could not have been more effectively accomplished than by the language used. No “facts constituting the ground of challenge” are set forth. It is not shown that “a material departure from the forms prescribed in respect to the drawing and return of the jury” was had. If the jury “was not drawn according to law,” the challenge could and should have shown wherein. The record shows that in obtaining the jury the court followed the provisions of paragraph 3542 of the Civil Code of 1913, by entering an order on its minutes directing the sheriff of the county forthwith to summon fifty good and lawful men of his county to serve as trial jurors; this order being based on the fact that there was no jury in attendance upon the court to try the case.
Paragraph 3542 has been the law of Arizona since 1901, it appearing in the Revised Statutes as paragraph 2807. The challenge failing to set forth any reason why the court was not authorized under said paragraph 3542 to order a special venire, we must presume that the court regularly pursued its authority, and that the facts, justifying the course taken by the court, existed.
A challenge was interposed to Juror Willis Miller upon the ground that he had “served as a juror on the regular list [313]*313within the previous twelve months in the same court.” This challenge is based upon chapter 24, section 2, Session Laws of 1905. At the time of the trial, said section 2 had been amended by the elimination of the ground of exemption or disqualification interposed. See paragraph 3543, Civil Code 1913.
The other errors assigned are directed toward alleged errors committed in the course of the trial, and in order to consider them it will be necessary to look into the evidence. They are that the court erred in admitting evidence over the objections of appellant and in rejecting evidence offered by the appellant; in the giving of instructions and in refusing appellant a new trial upon newly discovered evidence.
The Attorney General has called our attention to the fact that the reporter’s transcript of the testimony has not been approved by the judge who tried the case. He insists that under the rule heretofore made by this court in Chavez v. Territory, 14 Ariz. 107, 125 Pac. 483, Perez v. Territory, 14 Ariz. 163, 125 Pac. 483, and Shaffer v. Territory, 14 Ariz. 329, 127 Pac. 746, we are without authority to review the evidence for any purpose. However, we are not disposed to pursue that course in this case. Under strict law we might refuse to examine the evidence and confine our attention to the record for fundamental errors; but, in view of the fact that appellant has received the death sentence, we will treat the evidence as though it were regularly and legally before us. Besides, in the Chavez case this court said: “This being a criminal case where the death penalty was awarded, we have most carefully scrutinized the record as it is presented to us. The indictment is sufficient, and the evidence in the case is ample to support the conviction.”
In the Perez case it was said: “We have carefully examined the entire record presented. We think the instructions of the court fairly placed the law of the case before the jury, and we think the substantial evidence supports the verdict.”
In all capital eases this court has uniformly examined the evidence, whether approved by the trial judge or not, to see that the accused was protected in his rights and not unlawfully condemned. There has been no suggestion by the Attorney General nor anyone else concerned that the transcript of the evidence on file in this court is not correct, and [314]*314should it disclose that the appellant was not awarded all of the rights guaranteed to him under the Constitution and the law, in view of the fact that appellant’s life is involved, we ought not to hesitate to reverse the ease. On the other hand, if his rights were secured to him, the duty is equally obligatory to let the law take its course.
Out of the mass of testimony introduced the salient facts leading to the homicide and descriptive thereof are as follows:
The deceased, Jesse G. Danner, was the stepfather to Ethel Spencer, Ruby Johnson and Pearl Johnson, being the husband of their mother, Lily May Danner. The Danners and the appellant before coming to Arizona had lived at Anthony, New Mexico. While there the appellant paid attention to Ethel Spencer and kept her company for about two years. The deceased disapproved of his visits and companionship with his stepdaughter and requested appellant to cease visiting the Danner home. The Danner family, including Ruby and Pearl Johnson, moved to Miami, Arizona; Ethel Spencer remaining in New Mexico. Appellant also moved to Miami, and at the time of the tragedy was working at one of the mines there.
About September 6, 1913, appellant wrote a letter to Ethel Spencer, in which he advised her, if she could, to take her sisters away from Miami, because the Danners did not care as to the way they carried on; that one of the sisters was working in a shooting-gallery and the other was working in a restaurant; that these places were not places that decent girls should work; that there was a roadhouse between Miami and Globe; and that this roadhouse had been indicted because of letting Pearl and Ruby Johnson stay there all night. On the receipt of this letter, Ethel Spencer wrote to her mother and stepfather of its contents, but did not tell them its author.
On the evening of the 18th of November, 1913, about 8 o’clock, Mr. and Mrs. Danner and the appellant were at the home of Mrs. J. O. Lipps, in Miami. The deceased only remained for a few moments. After he had gone, someone remarked that Ethel Spencer was married. Mrs. Lipps further testified, when these remarks were made, appellant got up and left without saying a word. It could not have been very long thereafter when appellant appeared at the sleep[315]*315ing apartments of Harry Hovey and asked him if he wanted to go downtown. After they got started, Hovey said:
“ ‘Where are you going — to the dance?’ And he said, ‘Yes, I might dance some.’ We went in and sat in the dance-hall awhile, and finally he said, ‘Let’s go and get the mail,’ and I said, ‘All right.’ ”
While at the dance appellant asked Price Lipps if Mr. and Mrs. Danner came by, and was informed that they did. Peaching the postoffice, Hovey went in the building for the mail, and appellant remained on the outside at the door. Just at this moment the deceased and Mrs. Danner entered the postoffice, passing appellant at the door and meeting Hovey as he was going out. Hovey says he told Talley that there was no mail and suggested that they go, whereupon Talley said, “Let’s stick around.” As the Danners passed out of the postoffiee, Talley said, using his own language, “Mr. Danner, I would like to speak to you a minute.” Danner said, “All- right,” and walked up to him. “I said, ‘Mr. Danner, I understand you suspicion that I wrote a letter to Ethel about the way you are treating Pearl and Euby ? ’ and he said, ‘Yes.’ Then I asked him did he know who wrote the letter for sure, and he said, ‘No,’ and then I told him that I wrote it, and what I wrote was the truth, and he replied, ‘You are a damn dirty liar,’ and struck me almost at the same time.”
Mrs. Danner’s testimony was practically the same as appellant’s as to what was said by appellant and her husband, but she says appellant struck her husband first, knocking him down. A rough-and-tumble fight ensued, with the deceased first underneath, then appellant. In the meantime several people had gathered around, and Mrs. Danner was begging them to separate the combatants. While the deceased had appellant down and was severely punishing him, the bystanders pulled them apart, and in doing so they both raised to their feet. It was then that appellant drew a gun. The deceased said to him, “Put up that gun and fight like a man,” at the same time grabbing hold of the gun, or the hand in which it was held. The bystanders becoming frightened, ran away, and as they left the fighting men they heard a number of shots. Danner was assisted into the postoffice, where it was discovered that he was mortally wounded. The [316]*316appellant stood in the middle of the street in front of the postoffice working with his pistol, some of the witnesses saying that he reloaded it, and others that he was working with the pistol and remarked that it would not work; that it was out of order. Danner died in a very few minutes after he was shot.
The appellant testified that at the time he shot deceased the latter moved his right hand down toward his hip, and that he thought he was going after a gun; thus he would justify his act in taking the life of the deceased upon the ground of self-defense.
The state introduced as part of its evidence some of the-garments worn by the deceased at the time that he was shot,. an.d this is assigned as error. It is contended by appellant that there was no evidence to show that the garments were in. the same condition as when taken from the body of the deceased. No such objection to this evidence was interposed at the trial, the objection there being that such evidence was incompetent, irrelevant, immaterial and no part of the resgestae, and on the further ground that it had not been properly identified. The identification was absolute, the witnesses, testifying that the garments were the identical garments worn, by the deceased at the time he was shot. Appellant not having raised the point at the time that the clothing was not: in the same condition as when taken from the body of the-deceased, we think his objection now comes too late.
The prosecution was permitted over the objections of the-appellant to introduce evidence of appellant’s attachment to-Ethel Spencer, showing that he kept company with her against the will and protest of the deceased. It is contended that this testimony should not have been admitted, because-it was too remote and did not tend in any way to establish a motive or intent. With this contention we cannot agree.. The evidence showed that appellant and Ethel Spencer kept company for about two years, and that after he left New Mexico and came to Arizona he kept up a correspondence with her, and that when he learned on the night of the 18th of November, 1913, at Mrs. Lipps’ home, that Ethel Spencer had married, he was sensibly affected. The remoteness of' the evidence might affect its weight, but not its competency. It can readily be seen that Danner’s objection to his keeping [317]*317•company with Ethel Spencer would naturally he taken as an ■aspersion upon his character and social standing and a charge of social inequality with his stepdaughter. The most natural result of these reflections would he to arouse animosity and ill feeling.
In Leonard v. State, 17 Ariz. 293, 303, 151 Pac. 947, 951, we said:
“It is always permissible to show previous troubles, when in search of the real cause or motive actuating a party to the •commission of crime, especially if the trouble is of recent occurrence, or even somewhat remote in time, if it tends to elucidate and throw light on the act constituting the crime •or explain the reason of its commission.”
It is also objected that the court erred in permitting the prosecution to show the contents of appellant’s letter, dated ^September 6,1913, to Ethel Spencer, wherein he reflected upon the lack of parental care and affection on the part of deceased and Mrs. Danner for their daughters, Pearl and Ruby, and ■also upon the chastity and virtue of these two girls. We think the letter was proper evidence to show the feeling ■appellant entertained toward the deceased. If what he wrote was false, it was a malicious lie originating from the wicked ■ and vindictive heart; if the contents of the letter were true and written in the interest and for the protection of the two girls, still it indicated a feeling of resentment and condemnation toward the deceased. In either event, it would tend to .show feeling, motive or malice.
Jim Swearingen, deputy sheriff, testified, over the objections of appellant, that he and Alf Edwards examined the •ground for weapons, where the killing had taken place, and this was excepted to for the reason that no time was fixed ■as to when the examination took place. The witness stated that he was in the postoffiee immediately after the shooting. The question propounded was, “What else, if anything, did .yourself and Mr. Alf Edwards do with respect to the place where the killing had been had?” This was objected to on the ground of its incompeteney, irrelevancy and immateriality, whereupon the court asked, “I understand this is all within a period of a few minutes?” The county attorney ■replied, “All within a few minutes.” The witness then said •.that he and Edwards took a light and searched the ground to [318]*318see what they could find. "We think the objections interposed did not go to the grounds as now urged against the evidence. Besides, that no weapons were on the ground is supported by the evidence of all the other witnesses, and that the only weapon seen was the one in appellant’s hands. Appellant, himself says that he did not see any weapon in the hands or on the person of the deceased, nor did any other witness.
The appellant complains because the court sustained the-prosecution’s objection to the introduction in evidence of a letter written by Ethel Spencer to appellant in answer to his letter of September 6, 1913. We have examined the letter offered and fail to find therein anything bearing upon, the issues in the case. The appellant also complains that the court erred in not permitting him, while on the stand, to gO' into and explain the conduct of the two girls, Pearl and Ruby, and the character of the places where they were employed. We think the court properly rejected such offer, for it seems to us that it was immaterial as to what their conduct was or the character of the places in which they worked, as none of these things could possibly mitigate or justify the act of appellant in seeking out the deceased and provoking the quarrel that resulted in his death.
Pearl Johnson was a witness for the prosecution, and, on-being questioned concerning a conversation had with appellant some two or three weeks before the eighteenth day of' November, 1913, concerning her stepfather and the letter that appellant had written to Ethel Spencer, in answer to a question, she testified that appellant “said my stepfather was the cause of him and my older sister not agreeing, and he said he would get even. ... He said he would get even with him. . . . He said two or three times those-words, two or three times during the conversation.
“Q. What words? A. That he would get even with him.
“Q. Did he say he would get revenge on him? A. Yes,, sir; he said that once.”
After the last question had been answered, appellant objected and asked that the answer be stricken as leading and suggestive. This ruling of the court refusing to strike is assigned as error. The matter of permitting leading questions is-ordinarily left to the sound discretion of the trial court, and. this discretion will not be disturbed unless clearly abused.
[319]*319Another witness, Eate Eose, testified that in that conversation she heard appellant say, “I will get even with Mr. Danner.” In the connection and under the circumstances under which appellant made the threat the question could not have made very much difference in the meaning of the two statements. Appellant’s subsequent conduct toward Danner satisfies us that whether he said, “I will get even with Mr. Danner,” or, “I will get revenge,” he meant the same thing. Neither is it improbable that he did not use both terms. Besides, the question was answered before any objection- was interposed. We do not think that the court abused its discretion in refusing to strike the answer. 5 J"ones on Evidence, § 819.
The instructions of the court were very full, covering every phase of the case, and, when considered as a whole, we think they correctly state the law. Appellant has taken from them excerpts which he claims were prejudicial and erroneous. When considered alone, they might be so. One of the instructions of which complaint is made is as follows:
“You are instructed, gentlemen of the jury, that every murder which is perpetrated by means of poison or lying in wait, or by any other kind of willful, deliberate or premeditated killing, or which is committed in the perpetration of or attempt to perpetrate arson, rape, burglary or mayhem, is murder in the first degree. You wül thus see that included in the charge contained in the information is that the defendant is guilty of murder in the first degree.”
It is said that the court by this instruction practically told the jury that the appellant was guilty. The italicized sentence is somewhat confused and involved, but we think the reasonable construction of it is that in the information was included the charge of murder in the first degree. Further on in the instructions the court told the jury that included within the information was the charge of murder in the first degree, murder in the second degree, and manslaughter. These different degrees of homicide were fully explained and defined by the court, and the jury were advised that the verdict might be according as the evidence convinced them— for murder in the first degree, or murder in the second degree, or manslaughter, or not guilty. It seems impossible [320]*320that the jury could have been misled by the language objected to.
We have examined the other exceptions to the instructions and do not think that they misstate the law.
Finally, it is contended 'that the trial court should have granted appellant’s motion for a new trial upon the affidavits of newly discovered evidence. The principal affidavit relied upon was that of Mrs. W. B. Harris. She states in her affidavit: That she was at the postoffiee and saw two men and a woman who seemed to be scrambling, the men appearing to be lifting the woman up. The woman seemed to be trying to keep the men apart with her hands,- that thereupon she saw the smaller man of the two throw his hand np with a gun in it, and the woman immediately said to him: “For God’s sake, don’t kill him, Jesse; think of me and the children.” That the woman repeated these words many ■times. The larger man appeared to be endeavoring to take the gun out of the hand of the smaller man. That she was within ten feet of the parties who were fighting. She states that she informed her husband what she had seen and heard, and that he forbade her telling any person, and that she had not told anyone except her husband until after the trial. W. B. Harris, her husband, made affidavit to the effect that lie was in his house about sixty or seventy yards from the postoffice, having retired to bed, when he heard the same language; that when his wife told him what she had seen •and heard he enjoined upon her not to repeat it; that he had told no one these things until after appellant was tried and •convicted.
J. D. Kenney also made affidavit that he was about 150 feet from the postoffice when he heard the same language •and also pistol shots; that in about ten minutes thereafter, seeing a large crowd congregate near the postoffice, he went to the postoffice and viewed the dead body of Jesse Danner ; that he did not tell what he saw and heard to any person until after the trial and verdict, as he did not care to be ■a witness.
There were a number of eye-witnesses immediately present who testified as to what occurred after the fight began. They all state that the gun that they saw was in the possession «of the appellant; that he and he only did any shooting. [321]*321The appellant himself, while a witness, did not claim that deceased had a gun, or that he ever got possession of appellant’s gun. The affidavits are so widely at variance with the actual facts as they were told on the trial that we think they may he wholly discredited. Those witnesses that testified did say that Mrs. Danner was pleading not only with the appellant, hut with her husband, to desist from further trouble. The language that she used in addressing each of the combatants was variously stated by the witnesses, but none of them testified that she asked her husband not to shoot.
The learned judge who heard all of the evidence was well qualified to pass upon the weight and sufficiency of the affidavits, and we are satisfied that his disposition of them was correct.
Beurette De Berry made an affidavit upon the motion for a new trial to the effect that Kate Rose, a witness for the prosecution, after hearing of the verdict of the jury threw herself upon a bed and cried and sobbed; that he spoke to her, saying that there was no use crying, that neither she nor himself nor anyone else could help it now; whereupon she said, “If you had sworn to a bunch of falsehoods against Talley as I did, you would cry too.” The only thing that Kate Rose testified to was that she was present when appellant said to Pearl Johnson, “I will get even with Mr. Danner.” That statement was made to the jury under the solemnity of an oath. It does not stand alone; it is supported by corroboration. If she said to De Berry what is charged, it was not under the sanctity of an oath, nor does anyone corroborate De Berry that she ever said it.
Appellant, while a witness in his own behalf, testified that the deceased bit the index finger of his right hand. The prosecution in rebuttal of this statement by appellant, as to his finger being bitten by deceased, placed Dr. C. B. Wiley upon the stand. He testified that on the following day after the trouble he was called professionally to the aid of appellant. The doctor testified that appellant told him that he had had an infected finger in the neighborhood of a month; said that he examined the finger and found “a cut which ■appeared to be from an old infection. ... It had granulated tissues in it, which would go to show it had not been very [322]*322recent. ... In order for a wound to be granulated, it would be necessary to be sore for at least a week.”
The affidavits of H. S. Hovey and Mrs. J. H. Medlin filed upon the motion for a new trial stated in effect that they personally knew that the index finger of the right hand of appellant had thoroughly healed prior to the trouble, and that it had no sore or bruises upon it whatsoever prior to the eighteenth day of November, 1913. Hovey states, in addition: “I saw the said Jesse Danner biting the said index finger of the right hand of Robert Dayton Talley.” This witness was on the stand and testified; he says he did not tell what he saw to any person or persons prior to the verdict in the ease.
What the appellant now seeks to show about the condition of his finger by Hovey and Mrs. Medlin, it would seem, could have been amply sustained at the trial. He then certainly knew, and his intimate friends and associates must also have known, whether his finger was sore and bruised just before the trouble or not. The opportunity was then open to disprove statements of Dr. Wiley, and it was his duty to make his proof at that time.
As to all of these affidavits filed in support of the motion for a new trial and as to the disposition of the motion, we add, with approval, to what we have said, a quotation from State v. Fleming, 17 Idaho, 471, 106 Pac. 317:
“The granting of a new trial upon the ground of newly-discovered evidence is largely a matter of discretion, in the exercise of which this court will not disturb the order of the trial court except in case of abuse clearly disclosed by the record. A new trial should not be granted in a case where the party has not shown due diligence in discovering and producing the evidence, nor where the evidence is purely cumulative or contradictory, nor unless the newly discovered' evidence is such as to render a different result upon a retrial probable. To entitle the defendant to a new trial upon the ground of newly discovered evidence, it must appear from the affidavits presented that the new evidence is not cumulative merely, that it is such as to render a different verdict reasonably probable upon a retrial, and that the evidence could not with reasonable diligence have been discovered and produced at the trial.”
[323]*323One of the grounds upon which the new trial was requested was that the evidence did not support the verdict. That was a question for the jury. It was resolved against the appellant. There was ample evidence to sustain the verdict. The jury saw all the witnesses who testified, heard their statements of things they saw, and knew as they fell freshly from their lips. They must have concluded that the prosecution’s theory that appellant was harboring a feeling of hate and revenge against Danner for interfering with him and Ethel Spencer was true; that it was to carry out a preconceived plan that he went forth that fatal night armed and at his first opportunity grossly insulted the deceased for no other purpose than to induce the fight and take his life under the claim and pretext of self-defense.
During the time that this case has been pending here on appeal, it was discovered that the minutes of the trial court showed that the appellant was tried by only eleven jurors. This fact was called to the attention of the Attorney General, who in turn brought the matter to the attention of the county attorney of Gila county, who thereupon, after notifying the attorney of record for appellant, moved the trial court to amend its minutes in conformity with the actual facts. The minutes as amended have been certified to this court, showing that in truth and in fact the jury that tried appellant was composed of twelve men. The error in the original minutes was purely a clerical one, and consisted of the clerk in writing down the names of the jurors omitting the name of one who actually served in the case. Appellant has not suggested or contended that he was not tried with twelve jurors, nor has he at any time since the misprision of the clerk was discovered by the court urged upon us that this clerical mistake has in any manner prejudiced his rights. We mention these facts as a part of the history of the ease since pending in this court, and as an admonition to the clerks of trial courts of the necessity of carefully and accurately keeping their minutes and not because we think it has any bearing upon the merits of the case.
Judgment is affirmed.
FRANKLIN, J., concurs.