Quimby

Under an information charging him with the crime of murder, the appellant was convicted of murder of the second degree. He appeals from the judgment and an order denying his motion for a new trial. The homicide occurred at a small village known as Darrah, in Mariposa county, on the sixth day of November, 1906, the *Page 484 day upon which the general election throughout the state was held that year. The polling place at Darrah on that day was in the public school building. The deceased, Richard Smither, had been, prior to the fatal shooting, at the residence of Richard Darrah, having gone there, accompanied by the latter, at about the hour of 11 o'clock A. M. The deceased and Darrah had a few drinks of whisky at the latter's house, and shortly thereafter the former went to the polling place, a distance of about one hundred yards from Darrah's residence having in his possession a bottle of whisky, a box of cigars and a pocketknife, all of which articles he carried in his hands. Darrah stated that the deceased, while at the former's residence, extracted the cork from a bottle containing whisky by means of the large blade of his pocketknife, and added that "Smither was an expert at…

A careful consideration of the points discussed in the petition for a rehearing has developed no reason for *Page 492 a modification of the views expressed in the main opinion upon said points. A rehearing is, therefore, denied. Chipman, P. J., and Burnett, J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 29, 1907.