Borrego

Defendant was charged with murder, in the killing of one Juan Orosco, and upon trial found guilty of manslaughter. He appeals from the judgment on this verdict, and from an order denying his motion for a new trial.

Orosco, who was a deputy constable, gave a dance at a dance-hall in Los Alamitos, in the county of Orange, on the night of August 25,1907. Defendant, who had been drinking wine more or less all day, attended the dance and, while in the ballroom, became involved in some trouble with one Arthur Murrietta, who was Orosco’s helper or assistant. There was an exchange of opprobrious names and threats between defendant and Murrietta, and the latter grabbed defendant’s hands to prevent him from pulling a weapon. Orosco came up, directed Murrietta to turn the defendant loose, and told the latter he was under arrest. Some of the witnesses for defendant testified that Orosco followed the direction to Murrietta with the further remark, “I will fix him”; and another witness testified that Orosco merely said to the defendant, “You are under arrest, and .1 will make it all right in the morning.” Defendant thereupon went out of the room, Murrietta and Orosco remaining in the house. In…