Green

Defendant appeals from a judgment pronounced upon the verdict of a jury finding him guilty of murder of the second degree and from the order of the court denying his motion for a new trial. The information charged that on or about October 28, 1931, the defendant unlawfully killed and murdered Henry Lester Warren, sometimes known as Ed Warren, a human being.

There is but one point raised on the appeal. Contending that the evidence is insufficient to support the judgment, appellant asks that said judgment be modified, pursuant to the provisions of section 1181, subdivision 6 of the Penal Code, by reducing the offense from that of murder of the second degree to that of manslaughter.

Defendant and said Ed Warren had been employed in the baling of hay on a ranch near Bond’s Corner in Imperial County. Warren was a large man and weighed 168 or 170 pounds, while defendant weighed only 103 pounds. During the morning of October 28, 1931, defendant, Warren, Mike Sunday, Cecil Wilson, and Ilusie Green, who was a nephew of defendant, went by automobile to Calexico. After their arrival at Calexico the members of the party made several trips back and forth between Calexico and Mexicali,…