Cannady

Robert Sterling Cannady and Bufford Lee Beard, life prisoners, were indicted for an assault with malice aforethought and with a deadly weapon upon another inmate, Leonard Shiekscon Thompson (Pen. Code, § 4500). A jury found defendants guilty as charged and fixed Cannady’s penalty at death and Beard’s at life imprisonment. Cannady’s automatic appeal is now before us (Pen. Code, § 1239, subd. (b)), and Beard’s appeal from the judgment has been consolidated therewith.

*383 Defendants contend that the coúrt erred in admitting at the guilt trial prior consistent statements of witnesses as substantive evidence, defendants were denied a fair trial as a result of specified matters, the court erred in failing to give instructions on-manslaughter and defense of another, and the court improperly gave an instruction on flight and misread an instruction in a manner prejudicial to defendants. We have concluded that none of the contentions can be upheld but that, since the death penalty cannot constitutionally be imposed here, the judgment entered against Cannady should be modified in accordance with People v. Anderson, 6 Cal.3d 628 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ]. 1 (See also…

I concur in the opinion, except that, for the reasons expressed in my dissenting opinion in People v. Anderson, 6 Cal.3d 628, 657 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ], I dissent from the modification of the judgment from the death penalty to life imprisonment for defendant Cannady.

Robert Sterling Cannady and Bufford Lee Beard, life prisoners, were indicted for an assault with malice aforethought and with a deadly weapon upon another inmate, Leonard Shiekscon Thompson (Pen. Code, § 4500). A jury found defendants guilty as charged and fixed Cannady's penalty at death and Beard's at life imprisonment. Cannady's automatic appeal is now before us (Pen. Code, § 1239, subd. (b)), and Beard's appeal from the judgment has been consolidated therewith.

Defendants contend that the court erred in admitting at the guilt trial prior consistent statements of witnesses as substantive evidence, defendants were denied a fair trial as a result of specified matters, the court erred in failing to give instructions on manslaughter and defense of another, and the court improperly gave an instruction on flight and misread an instruction in a manner prejudicial to defendants. (1)(See fn. 1.) We have concluded that none of the contentions can be upheld but that, since the death penalty cannot constitutionally be imposed here, the judgment entered against Cannady should be modified in accordance with People v. Anderson, 6 Cal.3d 628 [ 100 Cal. Rptr. 152 , 493 P.2d…