Level

Defendant was convicted of murder in the second degree and the appeal is from the judgment and the order denying his motion for a new trial. The evidence without conflict shows a deliberate, premeditated murder and defendant was fortunate in escaping a verdict for the higher offense. The homicide occurred at the home of one J. K. Kelly, about three miles east of Redding, Shasta County. On the evening of August 1, 1914, deceased and Mr. and Mrs. Kelly were engaged in conversation on the front porch of the Kelly home. The deceased sat in a small rocking chair at the southeast corner of said porch, and J. K. Kelly reclined on a roll of blankets at the northwest corner of the porch. Until a few minutes before the killing Mrs. Kelly was in a hammock which was hung from the northeast to the southwest corner of the porch. About 9:30 o ’clock p m. appellant went to the Reid & Adams livery stable in Redding and asked for a rig to go to Clear Creek. He came, however, to the Kelly home, arriving about midnight, hitched his horse in front of the house and approached the front porch through the front gate. Deceased was still sitting in said rocking chair and J. K. Kelly reclining on said roll…