Graham

Appelant was convicted of murder in the second degree and appeals from the judgment and from the order denying his motion for a new trial.

The deceased, E. W. Mort, died from a gunshot wound inflicted by the defendant on the twenty-first day of August, 1922. There is no dispute as to this fact, but it is contended that the killing was necessary to the self-defense of the defendant under the circumstances shown in evidence.

The deceased lived near the town of Earlimart, in Tulare County. Ill feeling had existed between him and the defendant for some time. In August, 1921, the deceased had occasion to approach a hay-baling outfit operating about two miles from Alpaugh for the purpose of inquiring if the hay then in process of baling was for sale. The defendant was working on the baler and when he noticed the presence of the deceased he berated him for having accused him at some prior time of stealing hogs. A physical encounter ensued in which the deceased was thrown to the ground and severely beaten, by the defendant. Defendant was undoubtedly a more poAverful man than the deceased and as an indication of his disposition it Avas in evidence that when he had thrown the deceased to…