Huntington

The information charges the defendant with the crime of murder by the unlawful and felonious killing with malice aforethought of Jennie McKown on the twenty-seventh day of October, 1900, in the city and county of San Francisco. The case has formerly been before the supreme court. On the first trial the defendant was convicted of manslaughter, and on appeal the judgment was reversed upon the ground that the court erred in giving an instruction upon the subject of manslaughter, where the whole theory of the prosecution during the trial” was that defendant was guilty of murder in causing the death of deceased by an attempt at criminal abortion, no claim being made that death resulted from a lawful act in performing a surgical operation upon deceased without due caution and circumspection. (People v. Huntington, 138 Cal. 261 , [ 70 Pac. 284 ].) The court there remanded the cause for a new trial.

It is settled by a long line of decisions in this state that the verdict of manslaughter in the first trial and the judgment entered thereon operate as matter of law to acquit the defendant of all higher offenses, to wit, murder in the first degree and murder in the second degree. (People v.…