Chwistek

Defendant was convicted by a jury of first degree murder and sentenced to state prison for life, in accordance with the recommendation returned with the verdict. From the judgment and an order of the trial court denying a motion for a new trial this appeal is taken.

It is contended that the evidence was insufficient to sustain the verdict of first degree murder or any homicide of a higher degree than manslaughter, and that therefore the verdict was contrary to the law and the evidence; also, that the trial court erred in not reducing the crime to manslaughter, under provisions of section 1181 of the Penal Code, paragraph 6, it being urged that upon consideration of the evidence and the law such action should now be taken by this court. It is incumbent, upon us, therefore, to review the circumstances surrounding the commission of this offense.

On December 22, 1932, the defendant, a mechanic by trade, was engaged in the bootlegging business, having been, as he claimed, unable to secure other employment. Working for him was one Frank Tsehurl, a brother-in-law of the deceased, Frederick Kasprovitz. Tsehurl testified that, about 7 o ’clock of the morning of the date mentioned, while…