Young

The defendant was charged with murder, and appeals from a judgment convicting him of manslaughter and from an order denying him a new trial.

It appears that on the twentieth day of July, 1899, at 4 or 5 o’clock in the afternoon, the defendant and Caleb Greenwood, with several other persons, were in the saloon of Charles Lockhart,. near Monroe postoffice, in Mendocino county. Greenwood and defendant being both under the influence. of liquor, they were soon engaged in a war of words, which concluded with Greenwood committing a violent, brutal and unjustifiable assault on Young, in which Young was thrown down on the floor at least twice. He was kicked and badly wounded in the face, the clothes were torn from his body, and he was otherwise maltreated by Greenwood. This brutality finally ended, without any interference on the part of the bystanders, and Young retired to a rear room, re-clothed himself, returned, treated all hands, including Greenwood, and left the saloon. About two hours later Young reappeared at the saloon with a Winchester rifle in his hands, *635 and inquired for Greenwood. He remained on and about the premises for about half an hour, and during that time he took a…