Bowman

The defendant was tried and convicted, upon an information, of murder in the first degree in *567 the killing of one Samuel Dunn. From the judgment therein rendered, and an order refusing a new trial, he has appealed.

One of the grounds upon which he bases his contention that a new trial should be awarded him is, that the evidence does not show that he committed the murder with which he is charged; and conceding that any killing is shown to have been done by him, it does not appear that murder in the first degree was committed.

It is undoubtedly the law, as he claims, that, in order to convict of murder in the first degree, the defendant must be shown by the evidence beyond a reasonable doubt to have killed the person with whose murder he is charged, with the deliberate, premeditated, and malicious intent so to do. (People v. Cox, 76 Cal. 282 , 286; Pen. Code, sec. 189.) But it is the province of the jury to determine from all the facts and circumstances in evidence whether the killing is accompanied by all the ingredients which go to make up the crime charged. In this case a very strenuous argument is made upon all the evidence which was adduced, both direct and circumstantial,…