Morales

The defendant was convicted in the superior court of Placer County of the crime of fighting a duel with one Zacharius Martinez, which resulted in the immediate death of the last named. (Pen. Code, secs. 22'5, 226.) He made a motion for a new trial and the same was denied. He appeals from the. judgment of conviction and the order denying him a new trial.

The defendant, as was the deceased, is a Mexican, and both, at the time of their fatal meeting on the afternoon of the seventh day of March, 1925, were employed as laborers in the sewer-pipe department of the Gladding, McBean & Company pottery, at Lincoln, in Placer County. About half-past 3 o’clock on the afternoon of the day named, the two men engaged in a quarrel, and, so defendant testified, the deceased called him (defendant) a “bad name,” whereupon, the defendant continued to testify, the following angry colloquy took place between them: Deceased addressing defendant: “What kind of a man are you?” Defendant, replying: “You well know who I am.” Deceased to defendant: “I do not think you will come out with me to-night.” Defendant answered: “Let’s go right now.” Deceased replied, “Come on, let’s go,” and thereupon the two men…