Lanagan

Information against the defendant charging him with the crime of murder. Conviction of manslaughter. Motion for new trial denied, and defendant appeals.

One of the charges of the court to the jury is copied from the charge in People v. Hong Ah Duck, 61 Cal. 394 , and is the same charge which was repeated in People v. Bushton, 80 Cal. 160 . There, after mature consideration, it was held to be erroneous. On the authority of that case, the judgment and order appealed from in this case must be reversed. (See also People v. Elliott, 80 Cal. 296 .)

As the case will go back for new trial, we are asked also to consider other points made on this appeal.

The court, at the request of the prosecution, gave the following charge: —

The charge is quoted from an approved text-writer, and in a proper case may be accepted as sound law. But in this case it was insisted, and there was evidence tending to show, that the only blows given to the de *144 ceased by the prisoner were given with the fists only, and were given in self-defense; also, that the deceased died of disease produced by injuries received otherwise than at the hands of defendant. It might, therefore, be that the “violence of the…