Leddy

The defendant was accused by an information filed in the superior court of Santa Clara County with the crime of murder. He entered a plea of not guilty and upon a trial of the issue thus raised the jury returned a verdict of guilty of murder of the first degree and fixed his punishment at life imprisonment. He made a motion for a new trial, which was denied. The court thereupon sentenced him to life imprisonment in the state prison at San Quentin. From said order and judgment he appeals.

He contends that the evidence is insufficient to sustain the verdict, and further that the trial court committed prejudicial error in giving certain instructions to the jury, and also in refusing to give certain instructions proposed by him. We will first consider the question of the alleged insufficiency of the evidence to support the verdict.

The transcript of the evidence reveals that two distinct versions of the affray which led to the killing are given by the witnesses. One version being given by the witnesses for the prosecution, and which it is claimed by respondent amply sustains the verdict, and the other by the witnesses for the defendant and from which it is claimed by appellant it…