Kelley

The defendant, under an information charging him with the crime of murder, was convicted at the trial of murder of the second degree.

From the judgment and the order denying him a new trial he takes this appeal.

The homicide occurred on the twenty-second day of January, 1907, in the county jail at Susanville, the defendant having been arrested and confined in said jail on that day upon suspicion that he was insane. The sheriff, who made the arrest, employed the deceased, Perry Stout, to remain with and guard the defendant during the night of the day of the arrest. At about the hour of 12 o’clock that night one Packard, a night watchman and deputy sheriff, went to the jail with food or “supper” for Stout and the prisoner. On reaching the inside of the jail he found Stout lying dead on the floor. Death, it was learned upon investigation by the sheriff, who had been summoned to the jail immediately upon the discovery of Stout’s death, and by the autopsy physician, who later examined the body, was caused by knife wounds.

The defendant, as stated, had been arrested on the supposition that he was insane. He had been engaged as a laborer on tunnel work for the Western Pacific Railway,…