Tansey

The defendant was accused by the information of the crime of murder in the unlawful killing with malice aforethought of one McCartney in the city and county of San Francisco on the third day of September, 1907. The jury returned a verdict finding him guilty of manslaughter, and judgment was accordingly entered. This appeal is from the judgment and the order made by the court denying defendant’s motion for a new trial.

The main contention of the defendant is that the court erred in giving to the jury the following instruction: “The court instructs you that if, from all the evidence in the case and the law applicable thereto, you should be satisfied to a moral certainty and beyond all reasonable doubt that the defendant here is guilty of any offense under the law, and within the information in this case, you may find him guilty as follows: you may find the defendant guilty of murder in the first degree; or you may find the defendant guilty of murder in the second degree; or you may find the defendant guilty of the crime of manslaughter.”

The argument is based upon the statement that the evidence clearly shows that the person who killed McCartney was guilty of willful and…