Cook

The defendant was charged by an information filed in the superior court of Alameda County with the murder of Elizabeth Buckles. Upon the trial the jury returned a verdict of murder of the second degree, and from the judgment thereon and an order denying a motion for a new trial the defendant appealed.

As grounds for reversal it is contended that the evidence is insufficient to support the verdict, that the conduct of the prosecuting attorney during the course of the trial was prejudicial to the rights of the defendant, that the court erred in admitting certain evidence over objection, and failed • to instruct the jury upon matters material to the defense.

The evidence shows that on December 20, 1927, an operation for the purpose of producing an abortion was performed upon Elizabeth Buckles, who was pregnant and who died on the operating table. According to the testimony of Josephine Risius, she, with one Cole, assisted in the operation, which was performed by defendant. She testified that chloroform was administered by Cole and that the woman, while under its influence but during the course of the operation, died. Physicians who made a post-mortem examination testified that the…