Coldwell

This appeal is prosecuted by appellant from a judgment against him pursuant to his conviction of the crime of manslaughter, and from an order denying his motion for new trial.

Appellant was informed against by the district attorney of San Bernardino County. The information charged that on the fourteenth day of April, 1930, appellant did wilfully, unlawfully, feloniously and with malice aforethought kill and murder Florencio Carillo, a human being. He entered his plea of not guilty. A trial by jury resulted in his conviction of the crime of manslaughter. His motion for a new trial was denied and he was ordered committed to the state prison at San Quentin for the term prescribed by law. A stay of execution was granted pending appeal.

It appears from the evidence that on the afternoon of April 14, 1930, the deceased, accompanied by John Garcia and Juan Provencia were walking along a street near a reservoir in East Highland in San Bernardino County, talking and joking with each other. Near this reservoir stood an old Ford car which was used for pumping. As they came near this Ford, deceased picked up a rock and threw it in the direction of the Ford. The rock did not hit the Ford but…