Muhly

Defendant was charged with the murder of one James H. Bethel, alleged to have been committed on or about February 28, 1908, at the county of Madera. The jury found him guilty of manslaughter and recommended him to the mercy of the court. The sentence of the court was ten years’ imprisonment at San Quentin. Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial.

1. The principal point upon which a reversal is asked is that the evidence was insufficient to justify the verdict. At a former trial the defendant was convicted of manslaughter. On appeal the judgment was reversed. ( 11 Cal. App. 129 .) At the last trial the court properly instructed the jury that .if they believed from the evidence beyond a reasonable doubt that the defendant was guilty as charged, they must find him guilty of manslaughter. The defendant may deem himself fortunate, if guilty, that at his first conviction the jury by their verdict rendered impossible his conviction upon a subsequent trial of the higher crime, for the evidence tended to show a brutal murder by someone, with no accompanying circumstances pointing to any less crime than murder. While it is…