Ellis

Defendant and appellaht was accused in an information filed by the district attorney of Ventura County with the crime of murder, and upon the trial the jury found him guilty of murder in the first degree, attaching the death penalty. Prior to judgment defendant moved for a new trial, which was denied, and thereupon sentence of death was pronounced. Defendant appeals from this judgment and the order denying his motion for a new trial.

One of the contentions of defendant is that the verdict is not sustained by the evidence. The facts are as follows: Carlton E. Stannard (a white man) with two companions left a restaurant, where they had met by chance, in the city of Oxnard, Ventura County, this state, at about 1:30 o’clock on the morning of March 16, 1921, and walked in a southerly direction down Saviers Road and thence in a westerly direction down Seventh Street in said city. As they were proceeding on Seventh Street they heard music coming from the home of defendant located on the corner of Seventh and B Streets; Stannard, who is frequently hereinafter referred to as the “deceased,” went to the back door of his house and inquired of the defendant, who is a colored man, if he,…