Brittan

Defendant was convicted of manslaughter in killing one Phillip A. Reilley, and appeals from tbe judgment and an order denying him a new trial.

1. Defendant’s contention that the verdict is not sustained by the evidence is not maintainable. the killing was admitted by defendant, bis defense being that it was committed in necessary self-defense. There is a conflict in the evidence as to whether defendant or the deceased started the difficulty which ended in the homicide. The trouble commenced in a saloon, and ended on the sidewalk outside. The evidence all shows that, when the parties reached the sidewalk, the defendant was knocked down or thrown down by deceased, and that while the deceased was on top of defendant on the sidewalk the latter was very roughly handled, partly by deceased and partly by a companion named Cunningham, the latter kicking the defendant several times about the head and face while he was being held down by deceased. Deceased finally permitted defendant to get up, upon the latter saying that he had enough and did not want to fight. On getting to his feet defendant backed out some eight or ten feet from the sidewalk into the street; and at this point a very…