Matthews

The defendant was charged with the crime of murder, alleged to have been committed in the felonious *342 killing of one Heinrich Hopken on the twenty-eighth day of June, 1898. It appears that defendant was, at the time of the homicide, a constable of Milpitas township, in Santa Clara county. He had been in and around the saloon of one Pancera nearly all the afternoon, and had been drinking. About 8 o’clock or later in. the evening defendant was engaged in playing cards with one McCarron and others in the saloon, when Pancera came in and informed the parties in the saloon that if any of them had any articles in, their vehicles outside that they did not want stolen they had better go out and see about them. Defendant and McCarron immediately went out to where defendant’s horse, attached to a light spring wagon, was tied to a hitching-post. Defendant looked into his wagon, and informed McCarron that his whip was missing. The defendant immediately unhitched his horse, got into his wagon, and, with McCarron, started south on the Berryessa road, and after the two had gone about a hundred yards the defendant claimed that he had discovered that his coat was also missing from the wagon.…