In this appeal from an order denying a pretrial petition for habeas corpus Edward George Hearne contends there was insufficient evidence adduced at the preliminary examination to warrant his prosecution on two (2) counts of attempted murder. The contention is without merit.
The record establishes that Hearne, while participating in a heated argument and confrontation over “who turned off a residential water supply,” fired a shotgun “between 2 and 6 times” in the direction of several people, one of whom was struck in the arm, leg and chest, another in the head and shoulders. Both of the wounded required medical treatment and one testified there were still 9 slugs to be removed from his body.
Hearne contends his conduct lacks the magnitude of the charged offense because the shotgun shells were loaded with “number 6 shot,” which, it is argued, is intended only to kill birds or rabbits and is, therefore, incapable of inflicting a “fatal wound” on a human being.
We view Hearne’s unique argument as being in the nature of a defense, to be considered and resolved by the trier of fact. Ricci v. Sheriff, 88 Nev. 662, 503 P.2d 1222 (1972). See Mathis v. State, 82 Nev. 402, 419 P.2d 775 (1966). Cf. Maupin v. Sheriff, 90 Nev. 99, 520 P.2d 237 (1974).
Affirmed.