Garnett

Appellant was charged by information filed in the superior court of the city and county of San Francisco, by the district attorney of said city and county, with the crime of murder, for the killing of one J. W. McClung, on the twenty-fifth day of November, 1903. Upon his trial he was convicted of murder in the second degree. He made a motion for an arrest of judgment, and also a motion for a new trial. Both motions were denied, and he thereupon appealed from the judgment, and from the order denying his motion for a new trial, to the supreme court. The appeal was taken on the eighteenth day of October, 1904, which was before the adoption of the amendment to the constitution providing for district courts of appeal; but subsequently to the adoption of said amendment, to wit, on the twenty-fifth day of May, 1907, the appeal was by order of the supreme court transferred to this court.

Before taking up the appeal upon its merits it is necessary to dispose of a motion made by the appellant to strike from the files of this court the copy of the transcript on appeal filed in this court as a substitute for the original transcript filed in the supreme court. This court on the twenty-eighth…