Hayes

Defendant was charged by information with the crime of murder, for the killing of one William S. Jenks on the eighth day of January, 1907, in Humboldt county. Upon his trial the jury returned a verdict finding him “guilty of murder in the second degree at the extreme mercy of the court. ’ ’ Defendant made a motion for a new trial, which was by the court denied, and judgment was rendered that he be imprisoned for the period of twenty years. Defendant appealed from the judgment and order denying his motion.

The first and principal contention of appellant is that the court erred in refusing to give to the jury an instruction requested by defendant upon the subject of manslaughter.

The court not only refused to give the requested instruction, but gave no instruction whatever upon the question of manslaughter.

The pertinent part of the instruction requested and refused is as follows: “But I charge you that murder, whether in the first or second degree, is the unlawful killing of a human being, with malice aforethought, and unless the malice aforethought is shown beyon'd a reasonable doubt the person doing such killing could'not be found guilty of any higher crime than manslaughter,…