Buenaflore

— The defendants, Alfred Buenaflore and Marino Pias, engaged in a gun battle with each other about 7 o’clock in the evening in a public poolroom and restaurant on Post Street in San Francisco known as the Royal Cafe. Neither was injured, but one of the bullets struck and killed German Damsing, the proprietor of the cafe. Following the killing Buenaflore and Pias fled from the scene of the shooting and disappeared; but they were captured about three and a half years later, and having been indicted jointly for the murder of Damsing they were tried together, found guilty by a jury of murder of the second degree, and sentenced to imprisonment in the state prison. From' the judgments of conviction and the order denying their motions for a new trial they appealed. At the trial they were defended by separate counsel, and subsequent to the filing of the record in this court the appeal taken by Buenaflore was dismissed at his request. The appeal taken by Pias was submitted, on his part, on a nine-page opening brief, without oral argument; and the first point made in his behalf is that as to him the evidence is insufficient as a matter of law to sustain a conviction of murder. There is no…