Bones

The defendant was convicted of the crime of manslaughter and was sentenced to suffer imprisonment in the state prison for the term of three and one-half years.

He appeals from the judgment and the order denying his motion for a new trial.

The homicide occurred in a saloon at Bodega Bay, Sonoma County, on the twenty-third day of August, 1916. The deceased, Miles Gaffney, a dairyman by occupation and engaged in said business in the vicinity of Bodega Bay, had been in the said saloon at several different times during the day of the homicide. Late in the afternoon of said daj^—at about 5 o’clock—the defendant, accompanied by one Eugene Elphiek, entered the saloon and there met the deceased. Elphick and the deceased shortly thereafter engaged in a dice-throwing game to determine which of the two should pay for a watermelon. Elphick won the game and the deceased then said that he would treat to the drinks, whereupon he placed a piece of money on the bar and the three men, Gaffney, Elphick, and Bones, drank. A controversy then arose between Gaffney and Elphick relative to the watermelon for which the dice game had been played and it appears that the position of the deceased was that,…