Swigart

The defendant, by an information filed in the superior court of the county of Stanislaus, was charged with and tried for the crime of murder and was convicted by the jury of the crime of manslaughter. The cause has been brought to this court on an appeal from the judgment of conviction and the order denying the motion of the defendant for a new trial.

The homicide took place in the early morning of the thirtieth day of July, 1925, on the highway running in front of and near the Stanislaus County Hospital, said hospital being situated a short distance from the city of Modesto, the county seat of said county. The defendant and the deceased, one William Sullivan, were at the time of the fatal shooting, and had been for some time prior thereto, inmates of or patients residing at said hospital.

No one, other than the defendant and the deceased, was present at the scene of the shooting when the homicide occurred. The defendant was, therefore, the only living witness to the circumstances immediately attending or surrounding the act of killing. Upon other circumstances, however—those occurring prior to the date of the fatal meeting between the parties, together with certain…