Brown

Defendant was convicted of murder in the second degree, and from the judgment and an order denying him a new trial he appeals.

The court upon the trial charged the jury fully as to what constituted the crime of murder, both in the first and second degree, and directed the jury that unless it found the defendant guilty of one of such offenses to acquit him altogether. The defendant contends that the trial court erred in refusing to give certain other instructions tendered by defendant pertinent to the issue. The first of these instructions related to the duty of the jury, in the event it should determine that death resulted from an accidental fall; the second related to the evidence required to justify a verdict of manslaughter. There is nothing in the record rendering either of these harges so tendered applicable, and were the contrary true .as to the second charge, nevertheless appellant could not be heard to complain. The natural presumption is that, unless the jurors are satisfied beyond a reasonable doub't of the defendant’s guilt of the higher offenses, they will perform their duty and acquit, even though they be satisfied that he is guilty of a lesser offense. (People v.…