Tucker

This is an appeal from a judgment of conviction of murder in the first degree and from the order denying a motion for new trial. Defendant was sentenced to death.

The record shows that at about 2:30 A. M. on July 11, 1937, decedent, Antonio Martinez, apparently in an intoxicated condition, left a Sacramento saloon and proceeded along the street where he crossed the path of defendant,' a stranger to him. At this time the decedent addressed a foul epithet to him. Thereupon the defendant followed the decedent across the street and after some time caught up with him and struck him in the face with his fists. The decedent fell to the ground and defendant kicked him as he lay there. Then he kneeled over the decedent and struck him three times in the chest with -a stabbing motion. The defendant threw decedent’s hat at him and left quickly towards his home. The decedent arose and staggered to the middle of the street, where he fell. Shortly thereafter police officers found decedent and were directed to the defendant, whom they apprehended. They found a pocket knife in defendant’s clothes, the larger blade of which was capable of inflicting a wound found on decedent’s chest. Decedent died…