People v. Wardrip

McFARLAND, J.—

The defendant was charged with the murder of one Hugh Duffy. He first pleaded “Guilty,” but afterwards withdrew that plea and pleaded “Not guilty.” He was convicted of murder in the first degree, and judgment of death followed. He appeals from the judgment and from an order denying the motion for a new trial.

The main contentions of appellant for a reversal are based on the refusal of the court to give certain instructions asked by appellant, and those discussed in the briefs are numbers 18, 19, 22, 25, and 26.

Number 26 is merely a statement to the jury that if they should find the appellant guilty of murder in the first degree they have the discretion of determining whether the punishment should be death or imprisonment for life; but in another part of the instruction the jury were expressly so instructed, and were clearly told what the form of their verdict should be in order to express their discretion touching the penalty of death or imprisonment. They were fully informed on the subject.

Number 25, which is in substance to the effect that a murder committed after the perpetration of or attempt to perpetrate a burglary, and when the party is in flight, is not done in such

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perpetration or attempt to perpetrate within the meaning of section 189 of the Penal Code. This proposed instruction was not applicable to the evidence in the ease, which shows that, if appellant killed Duffy, the killing was in immediate connection with the burglary, and before flight.

Number 22 was merely that a confession to be admissible must be freely and voluntarily made, etc.; but the court had given the instruction, substantially, in other parts of the charge; among other things it had said: “In considering the weight to be given to any alleged confession made by defendant, you should consider all the testimony in the case upon that point, the position of the defendant at the time, his surroundings, his strength of mind as shown by the evidence, and any hopes or fears, if any, that may have influenced him.”

Number 18, to the effect that “when there was evidence of admissions made by defendant, he is entitled to have the whole of the statement or admission heard and considered by the jury,” was covered by other parts of the instruction, and defendant was not prejudiced by the refusal to give it. On this subject the jury was told that “In considering the evidence as to the oral admissions of the defendant touching the matters involving the offense with which he is charged, you will take into consideration all the statements made by him, whether for or against himself, and give such -statements fair consideration. ’ ’