Rhodes

Defendant was convicted of murder in the second degree, and has appealed from the judgment without bringing up any testimony. The appeal is before us upon the record provided for by section 1246 of the Penal Code only.

The first point urged for a reversal is that the court erred in refusing to give instructions, requested by defendant, upon the question of manslaughter.

Unless there was evidence before the jury tending to prove a case of manslaughter, it was not error to refuse to give any instruction upon that subject. (People v. Byrnes, 30 Cal. 207 ; People v. Lee Gam, 69 Cal. 552 ; People v. Turley, 50 Cal. 469 ; People v. Estrado, 49 Cal. 171 ; People v. Fellows, 122 Cal. 233 , [ 54 Pac. 830 ]; People v. Chaves, 122 Cal. 140 , [ 54 Pac. 596 ].)

It is necessary for the appellant to affirmatively show error in the action of the trial court before this court will reverse the judgment or order appealed from. (People v. Russell, 156 Cal. 450 , [ 105 Pac. 416 ].)

There being no evidence in the record before us, it does not and cannot appear affirmatively that the court was not perfectly justified in refusing to give any instruction upon the question of manslaughter, and we must…