Kloss

The defendant appeals from a judgment inflicting the death penalty for murder and from an order denying his motion for a new trial.

Numerous errors are assigned upon the rulings of the trial judge, and it is also contended that the evidence is insufficient to sustain the verdict.

The evidence for the prosecution was, in substance, “ that on the morning of April 18, 1895, shortly after midnight, the defendant entered a barroom at the corner of Hayes and Laguna streets, in San Francisco, where were present the barkeeper, the deceased, and a party named David Middleton. The deceased and Middleton were asleep. Defendant aroused Middleton, and told him to wake up the deceased, which he refused to do. Defendant then said, ' I will wake him up,’ and struck deceased two blows with a knife in the neck. When asked what he had done, defendant said, ‘ I have woke him up; I have fixed him; I have killed the son of a bitch.’ A police whistle being blown, he again walked to the deceased and struck an additional blow, remarking, ‘ Dave, I have killed him; I have fixed the son of a bitch,’ showing a knife, and throwing it on the floor. Subsequently, on being arrested, he admitted the stabbing,…