Denomme

Defendant, Jeremiah Denomme, was charged by information with the crime of murder, alleged to have been committed upon one C. B. Molbeek, at the county of Fresno. Upon his plea of not guilty a trial was had and a verdict of guilty of manslaughter returned, upon which he was adjudged to punishment for five years in the state prison. This appeal is from the judgment, and from an order denying defendant’s motion for a new trial.

1. Appellant claims that the evidence does not justify the verdict. The homicide occurred in a saloon. Deceased was quite drunk, although able to walk. Shortly before the assault he had been drinking at the bar with two other men, when some trouble arose, and the bartender knocked one of the party down. Defendant was not one of those three, but was in the saloon at the time. Just after this occurred, deceased started to go toward the rear of the saloon, and on his way passed near defendant, who was standing near a safe, talking with another person. A witness, who was sitting at a card table at the time, facing the bar and the parties, saw deceased as he approached defendant, and testified to. what deceased said, as follows: “ ‘It is a—’ I couldn’t tell…