Phillips

The appellant was charged in the first count of an information with the murder of one Ted Padgett and in a second count of the same information with assault with intent to commit murder upon one Orville Padgett. The jury found him guilty of murder in the second degree on the first count, and acquitted him on the second count. This appeal is from the judgment and from an order denying a motion for a new trial.

The first point raised is that the evidence is not sufficient to support the verdict. The appellant was employed on a used car lot owned by one Copeland, in the city of San Bernardino. On the. rear of this lot was a small brick building used as an office and immediately adjoining the lot was a service station operated by one Sievers. Late in the afternoon of January 4, 1931, a number of men, including Sievers, Orville Padgett, Ted Padgett, the appellant, the appellant’s brother Frank Phillips, and one Gingstrom, were engaged in gambling in the brick office of the used car lot. The game broke up about 5:30 o ’clock and several of the men left. Shortly thereafter, the appellant accused Orville Padgett of cheating, whereupon a general fight ensued during which the two Padgetts…