Tugwell

Upon a charge of committing the crime of murder, in that he did willfully, unlawfully, and with malice aforethought kill one Maude Kennedy, defendant was convicted of manslaughter. He prosecutes this appeal from the judgment and an order of court denying his motion for a new trial.

There was a former trial of the case which resulted in defendant being convicted of murder in the first degree, following which sentence of imprisonment for life was pronounced upon him. On appeal that judgment was reversed. As presented by the record herein; the facts concerning the homicide and the circumstances pointing to defendant as the one who committed the crime are substantially the same as exhibited by the record on the former appeal, wherein a full and complete statement of the case is set forth in the opinion there" filed. (See People v. Tugwell, 28 Cal. App. 348 , [ 152 Pac. 740 ].) Bef erring to that opinion for a statement of the case, we shall here, in discussing the errors assigned, confine ourselves to such reference to the evidence as may be necessary to illustrate the points made by appellant.

The theory of the prosecution, and which the evidence tended to prove, was that defendant…