Mallicoat

Appellant was convicted of the crime of murder of the second degree and sentenced to serve a term of ten years in the penitentiary. He appeals from the judgment and from an order denying his motion for a new trial.

In August-, 1914, four privates in the marine corps of the United States government went from their post on North Island in San Diego County to the city of San Diego. They arrived in the latter citjr during the course of the afternoon and spent their time variously at certain saloons and other resorts. By the hour of 11 o’clock in the evening they had imbibed considerable liquor, but so far as the evidence show's were not greatly intoxicated. While enjoying themselves in one of the saloons which they visited, they were approached by a civilian who was intoxicated and who desired to make one of their party. A marine named Brinton, being one of the four, testified that he took charge of the civilian and led him away, intending to take him to his room. While on the street and while conducting the civilian therealong, he was stopped by appellant, who was a special police officer engaged as a chauffeur for the police department of the city of San Diego. Some articles from…