Peter

Appellant was convicted after a trial had before a jury of murder of the second degree, and appeals from the judgment as entered against him on the verdict and from the order denying him a new trial. Appellant also appeals from the order denying his motion for change of verdict from murder of the second degree to manslaughter. As to this attempted appeal from the order denying appellant’s motion for modification of the verdict of murder of the second degree to one of manslaughter, it would appear that this is not an appealable order, as it was made before judgment (Pen. Code, sec. 1237), but the matter may properly be reviewed on the appeal from the judgment and the order denying appellant’s motion for a new trial.

The facts and circumstances which culminated in the killing here involved, as disclosed by the record, are somewhat entangled, and the evidence produced at the trial, at times, is sharply conflicting. Appellant shot and killed one Alex Usuclte on Thanksgiving Day, 1931. The homicide occurred at the home of one Mrs. Eros, where both appellant and deceased lived. The deceased was shot at about 7 o’clock in the evening, after a day spent in a sordid celebration of the…