Wright

The defendant was convicted of the crime of mayhem, and sentenced to imprisonment in the state prison for the term of three years. From the judgment of conviction, and the order denying his motion for a new trial, this appeal is taken.

Section 203 of the Penal Code, upon which the information herein was founded, reads as follows: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.”

The evidence upon which he was convicted is in substance as follows: Defendant, while drinking in a saloon with several others, became involved in a quarrel with one of the party named Crall, who challenged him for a fight, which he declined. Crall then left the saloon, and immediately thereafter defendant “ threw off his overcoat” and walked up to one of the party named Trood, who, it appears, was very drunk, and addressing him in an angry manner, said: “ Any one who says Crane was in this is a damned liar.” Trood responded: “ I said it, and I am not a damned liar.” Defendant then struck at Trood, and they at…