Sullivan

Defendant was convicted of the crime of murder in the second degree and was sentenced to imprisonment during his natural life. He appeals from the order denying his motion for a new trial and from the judgment of conviction.

Joseph M. Sullivan testified: That about midnight of August 10, 1903, defendant and his codefendant Powell, were fighting one Delehanty near the comer of First and Folsom streets in the city of San Francisco, when Officer Sample came up and separated them and defendant and Powell went away .along Folsom street in the direction of Second street. Sample followed them a short distance and came back to where he first encountered the parties and said to witness: “What I should have done was to use my club.” The witness told him the affair was over and the best thing to do was “to drop it as it was.” Sample said “No,” and started after them again. This was the last this witness saw of them. Witness Shanberger, a lodger at No. 545 Folsom street, south side, testified that he heard a noise on the street shortly after 12 o’clock; he got out of bed and looked out of the window and saw two men standing on the opposite sidewalk; that one of these men shot a pistol twice…