Fitzgerald

Defendant was tried upon the charge of murder in killing with malice aforethought one Charles Slater on the eighteenth day of September, 1904.

The jury returned a verdict of murder in the second degree. Defendant made a motion for a new trial, which was denied, and judgment was entered directing that he be imprisoned for ten years in the state prison at Folsom. This appeal is from the judgment and order denying a new trial.

The main contention of appellant is that the evidence does not support the verdict. The evidence shows that deceased and defendant were fellow-laborers at McKenzie’s mill in Fresno County at the time of the homicide. There had been no previous trouble between them, and they had been on friendly terms prior to the killing. On Sunday morning, the day of the homicide, deceased had been drinking, but appears to have been in a humorous mood and trying to entertain his companions in various ways. He was telling stories, joking, scuffling with his fellow-laborers, and pretending to auction off the property of every one. He had tom the mosquito netting off defendant’s bed, and had his feet up on the bed. Defendant requested him to take his feet off his bed, and…