Ross

Defendant was convicted, after a jury trial in the county of Butte, of the crime of murder in the second degree. The information charged him with having murdered one Charlotte Boyd, in the city of Chico, Butte County, California, on the 26th day of July, 1938.

Defendant moved the trial court to modify the judgment and enter a judgment against him of manslaughter. The trial court refused to so modify the judgment, and appellant now asks this court to modify the judgment to manslaughter, which may now be accomplished without a new trial, under section 1181 (6) of the Penal Code.

Appellant’s first point relates to the power of the appellate court to modify this judgment to that of manslaughter. Respondent concedes that this court has such power under the above section of the Penal Code as it now reads. We are therefore concerned only with appellant’s second point, namely, whether the evidence is sufficient to sustain the verdict of murder, or whether the evidence will only sustain a judgment of manslaughter.

The defendant Walter Ross was twenty-four years old at the time of the murder. His paramour, Charlotte Boyd, the deceased, was thirty-one years of age, and had been married…