Vaughan

The defendant was convicted of murder of the second degree for killing George Barnet at Calaveras dam, in Alameda County, on June 15, 1916, and appeals from the judgment and from an order denying his motion for a new trial.

The first point made on this appeal is that the evidence is insufficient to support the verdict of murder of the second degree. With this contention we cannot agree. The deceased and the defendant quarreled over a card game, of which the defendant was the banker. During this quarrel the defendant got possession of a small sum of money which he admits belonged to the deceased. The two men separated after hard words had passed between them. The defendant armed himself, and the men met in a bunk-house where both slept, and renewed the quarrel. After some violent language, in which both indulged, the deceased either struck or shoved the defendant, and the latter fell to the floor against the wall. On regaining his feet the defendant fired a shot into the floor. He then brought his arm up slowly and fired two shots into the abdomen of the deceased, killing him. The deceased was unarmed, and the defendant knew this. The men were of about equal weight and physical…