Jake

The defendant, who was accused by information of the crime of murder, was convicted of murder in the second degree, and sentenced to imprisonment in the state prison for the term of thirteen years. This appeal is taken from the judgment and the order denying his motion for a new trial.

The errors complained of relate to the rulings of the court upon the admission and rejection of testimony against the objections and exceptions of the defendant, and upon the giving of the second instruction for the people, and the refusal of the fourth instruction asked for by the defendant.

The first of these instructions is claimed to be erroneous, on the ground “ that it does not state the law correctly,” and the objection is especially urged against that part of it which reads as follows; “The burden of proof will be thrown on the defendant to show the absence or want of malice, unless thé proof on the part of the prosecution shows that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

While it is true that this isolated instruction ignores the circumstances of mitigation which may have been proved on the part of the prosecution, tending…