Evans

The defendant was charged with murder and convicted of the crime of manslaughter. He prosecutes this appeal from the judgment of conviction and the order denying his motion for a new trial.

At the time of the homicide the defendant was a special policeman of Eureka and had served in that capacity continuously for a period of more than seventeen years. The deceased, Oscar Roberts, was an Indian. He and his brother James Roberts had been drinking intoxicating liquors during the evening and were intoxicated. Shortly before the homicide they engaged in two altercations with a white man who, in each instance, knocked the deceased down. The white man testified that when the Indians approached him the second time the deceased “had his hand behind his back as if he had something, a knife or gun or something.”

James Roberts testified that he and the deceased left the scene of the second encounter and walked down the street to an alley, into which they turned; that while passing along the alley they looked back and saw a man behind them; that they then walked faster and, as they were about to emerge from the alley at the opposite end from that at which they entered, the deceased was shot…