Wilson

The defendant was indicted by the grand jury of San Diego county for the crime of an assault with a deadly weapon, with intent to murder, committed upon the person of John M. Mclnnes. Upon his trial he was found guilty as charged, and sentenced to imprisonment for three years in state’s prison, and this appeal is from the judgment and an order denying a new trial.

Defendant was the keeper of a saloon in the city of San Diego. On the night of December 16, 1895, three policemen—Sergeant Cota and officers Warner and Mc-Innes—went to defendant’s saloon for the purpose of arresting him for shooting a soldier named Kelley, which had been reported to the police office by telephone. Sergeant Cota first sent Warner and Mclnnes to the saloon to watch the defendant while he went to the hospital for information as to the alleged shooting, and was "there informed that Kelley had been shot by defendant in the saloon. The sergeant returned two or three minutes before midnight, and told defendant “to consider himself under arrest for shooting that soldier.” Defendant asked if he had a warrant. The sergeant replied: “ No; I don’t need one now.” Defendant then ordered all persons—there were others…