Fellows

Defendant, convicted of murder in the first degree for the killing of one Dolores Garcia, appeals from the judgment and from the order denying him á new trial.

*235 1. Dolores Garcia kept a saloon in the little town of San Juan Capistrano. The defendant was a farmer and vacquero. He drank much, and usually made himself drunk when he came into town. At the same time he was not incapacitated by drink from attending to his usual vocation. In the past he had had some business trouble with the deceased, and frequently referred to that trouble, and evinced his hostility toward Garcia when he had been drinking. He said that Garcia “had done him up for a hundred dollars, and that he would do Garcia up anywhere he met him.” Upon the afternoon of June 16, 1897, he came into the town of San Juan Capistrano upon horseback, carrying a heavy rifle. He had been drinking and continued to drink. To several people whom he met upon his way to the town, and to others with whom he talked after he arrived at the town, he declared his intention of killing Garcia. Between 8 and 9 o’clock in the evening he met Pedro Lebatt, who was “pretty intimate with him,” and to him declared his purpose and offered…