Foster

The defendant was indicted by the grand jury of Sacramento County for the crime of attempting to escape from the state prison, at Polsom, in said county, he then being a prisoner confined in said prison for a term less than for life. (Pen. Code, sec. 106.) Ills trial upon said indictment resulted in a verdict of guilty, and he prosecutes this appeal from the judgment of conviction and the order refusing to grant a motion made by him for a new trial. It appears from, the evidence that the locomotive engine which is used in hauling freight-cars from the prison to the town of Folsom and there connecting with the Southern Pacific Company’s road was, on the twenty-ninth day of June, 1919, in charge of a guard named Lucas, whose particular duties then were those of a locomotive engineer on said engine. The fireman of the engine at the time mentioned was a convict named Cody. On the afternoon of said day, while the engine was being used in the prison yard in switching freight-cars, the defendant, together with two other convicts, St. Clair 'and Heath by name, jumped upon the engine and into the cab thereof, and St. Clair, holding a knife over and against the body of Lucas in a…