McFarlane

Defendant was accused by information charging him with the crime of murder. His trial resulted in a verdict of manslaughter. At a previous trial, upon the same information, the same verdict was rendered. From that judgment there was an appeal by defendant to this court, and the cause was remanded for a new trial. (People v. McFarlane, 134 Cal. 618 .) Defendant again appeals from the judgment and from the order denying his motion for a new trial. The transcript does not give the defendant's pleas, but it seems to be conceded that he pleaded not guilty, and also that by the verdict rendered in a former trial — to wit, March 24, 1901 — he was acquitted of the offense of murder, and also that he has once been in jeopardy. *Page 483 1. The court refused an instruction asked by defendant, — that if "you should believe from the evidence that the defendant killed the deceased, James Tucker, with malice, deliberation, or premeditation, and not in a sudden quarrel or heat of passion, you should find the defendant not guilty. In other words, you cannot find the defendant guilty of manslaughter if you believe from the evidence that he killed the deceased, James Tucker, by…

A rehearing is denied, but in denying such rehearing the court places the denial, so far as the ruling of the trial court upon the motion to strike out the testimony of the witness Pennycook is concerned, solely upon the ground that the record shows that said witness did testify to certain facts from his own recollection, and the motion to strike out, being addressed to all of the testimony, was properly denied. McFarland, J., Angellotti, J., Beatty, C.J., Lorigan, J., Van Dyke, J., Shaw, J.