Baa

This is an automatic appeal from a judgment imposing the death penalty.

Count one of the information charged appellant and Preston Jones, both Negroes, with the murder of Tom Din Toy, a Chinese. Count two charged them with having conspired with Robert Denton, Grant Harris and Willie Davis to rob Toy. Count three charged appellant and Jones with the robbery of Toy. Appellant and Jones, represented by separate counsel, were jointly tried on all three counts.

The deceased was robbed and shot about 1:30 o’clock in the morning as he entered the hallway of the Service Hotel in the city of San Diego. The night clerk at the hotel testified that he heard a noise in the entrance way, followed by a flash and report of a gun. He saw the man who fired the shot bend over the victim and then run out of the hallway. Five minutes after the shooting he identified the jacket then being worn by appellant as similar to the one worn by the person who did the shooting.

A sergeant in the United States Marine Corps testified that just prior to the shooting he saw three men cross the street in front of the Service Hotel. Two of the men were about 15 feet in back of the third one. All three entered the…