Alexander

Defendants were jointly tried on an information charging them with the murder of one William H. Beinking. The defendant Alexander was convicted of manslaughter and the defendant Avilla was convicted of murder in the second degree. Both defendants have appealed from the respective judgments following the verdicts and from the orders denying their motions for a new trial. Prior to the submission of the appeals the defendant Alexander filed a dismissal of his appeal and consideration, therefore, is given only to the appeal of the defendant Avilla.

The facts of the case are that while the two defendants were loitering upon the streets of Oakland with a number of other companions on the evening of July 5, 1922, deceased was peaceably walking along one of the main streets of that city. As he passed these defendants and their companions the defendant Avilla hit him in the leg with a rock or clod of dirt without any provocation. The deceased paid no attention to the incident, but continued on his way, and after he had gone some distance the defendant Avilla said to defendant Alexander: “Come on, Mowie, and let’s get that guy,” calling the defendant Alexander by his nickname. Thereupon…