Romero

The defendant was informed against by the district attorney of Santa Cruz county for the offense of an assault with intent to commit murder. Upon being tried he was convicted of a lesser offense, to wit, an assault with a deadly weapon. Subsequently the court denied a motion for a new trial, and sentenced the defendant to a term of imprisonment in the state prison. This appeal is prosecuted from the order denying defendant’s motion for a new trial and from the judgment.

The defendant claims that the evidence is insufficient to support the verdict of the jury, and that the court committed prejudicial error by refusing to give certain requested instructions.

There is no good foundation for the point that the evidence is insufficient. It shows that the defendant and the prosecut ing witness had been living together for some time, having assumed toward each other the rights and duties of husband and wife without the previous celebration of any marriage ceremony. Angered by a report 'which reached him that (to use the language of the record) the prosecutrix had been ‘ ‘ chasing around in Santa Cruz with niggers,” the defendant, furious with jealousy and under the influence of…