Navarette

The defendant appeals from the judgment of conviction of the crime of murder of the second degree and the order denying his motion for a new trial.

The defendant and four other Mexicans and three white men were riding at night, without authority or permission, in an open freight-ear, known as a gondola car, attached to a Southern Pacific train. A brakeman ordered the Mexicans to leave the train, saying the white men might remain. The train was moving at a speed of about six miles an hour in a southerly direction. The white men and one of the Mexicans were at the west side of the car and the other Mexicans at the front. At the time of the shooting the brakeman was standing in the center of the car. Two of the white men testified that when the brakeman ordered the Mexicans to leave, those in the front of the car moved toward the rear past the brakeman but that the one on the west side with the white men did not change his position; that the brakeman then fired a shot over the head of the Mexican who had refused to move, whereupon one of the Mexicans who were moving toward the rear shot the brakeman from a distance of four to six feet away, and that at the time the brakeman was…