Elmore

The defendant was charged by indictment with the crime of murder of the first degree. He was convicted of murder of the second degree and was sentenced therefor to ten. years’ imprisonment. He appealed to the district court of appeal of the third district. That court being unable to agree upon a decision, the cause was transferred to this court.

The victim of the homicide was one Fred W. Polio. There is no dispute over the fact that his death was caused by a knife wound inflicted by Elmore on December 27, 1912. Polio died therefrom a day or two afterward. The indictment was returned on December 31, 1912. The conviction was had upon the second trial of the cause, which was begun on March 18, 1913, and ended on March 20, 1913. There is no substantial conflict in the evidence. George H. Rucker was the only eye witness to the whole affair and his testimony, in effect, constitutes the ease against the defendant. One Allen Rudolph saw the latter part of the affair but his testimony differs in no important particular from that of Rucker. Rucker gave a clear statement of the case of which the following is the substance:

The affair occurred in the Eagle saloon in the town of Willows, in…