Solani

The defendant was charged with the murder of one John Guidotti, and was convicted of manslaughter. He appeals from the judgment and from an order denying a motion for a new trial.

The appellant bases his contention for a reversal upon the grounds: 1. Insufficiency of the evidence to justify the verdict ; 2. Misconduct of the jury; and 3. Errors committed by the court in its instructions to the jury.

' As a new trial must be granted on the last assignment of error, it is not necessary to notice the others.

The instruction complained of is as follows: “Intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion • of the accused. The intent must be proved; but when an unlawful act is proved, the law presumes it to have been intended, unless otherwise shown by the evidence. It is never required by the prosecution to prove an unlawful intent by positive and direct evidence. In many cases such proof could not be made; and it is deemed sufficient to prove the unlawful act and from such proof the law presumes the unlawful intent. And if the defendant in this case shot John Guidotti, and killed him, the law presumes the defendant…