Benning

The defendant was tried on an information charging the crime of murder and was found guilty of manslaughter. From the judgment following the verdict and from the order refusing a new trial the defendant has appealed on a typewritten record.

The facts of the case, briefly stated, are that the defendant shot and killed one John Pena in the city of San Jose on the sixteenth day of August, 1926, at about 6 P. M. Ill feeling had arisen between the defendant and the deceased growing out of information coming to the defendant of improper relations between the deceased and the defendant’s wife. Some time prior to the killing the defendant had warned the deceased to cease his attentions to his wife, but a short time thereafter the defendant’s wife informed him that the association still continued. On a number of occasions immediately prior to the killing friends and neighbors had informed the defendant concerning these relations. This information, it is claimed, influenced the defendant to seek out the deceased in order to give him additional warnings, and as the defendant started out upon this mission he procured from one of his friends a loaded revolver, which he testified he took along…