Thomas

This is an appeal from a judgment imposing the death penalty for murder in the first degree and from an order denying defendant’s motion for a new trial. It is contended, among other things, that the evidence is insufficient to establish the homicide as murder of the first degree, that it shows at most murder of the second degree or man *885 slaughter, and that the trial court' erred to the prejudice of defendant in instructing the jury relative to the elements of the two degrees of murder and the burden of proof.

Upon an examination of the record it appears to us that the evidence, while not wholly insufficient as a matter of law to support the adjudication of first degree murder, is ample to sustain a finding that the homicide was manslaughter or murder of the second degree. It was, therefore, incumbent upon the jury to resolve the material conflicts in the evidence, including the divergent inferences, and thereupon to determine the class or degree of the'offense. In order to make such determination it was essential that the jury be adequately and accurately informed as to the elements of each of the degrees of murder as well as those pertaining to manslaughter, and as to the…

As I read the record in this case, it not only shows evidence which, as conceded by my associates, substantially supports the verdict of the jury finding Thomas guilty of murder of the first degree but also a charge to the jury which includes a complete and accurate statement of the law relating to the crimes of murder and manslaughter. I therefore cannot concur in the decision granting the appellant a new trial. And assuming that the abstruse and meticulous analysis of the instructions made by Justice Schauer justifies the conclusion that there was error in the charge to the jury, in my opinion, considering all of the facts of the case, the verdict should be upheld in accordance with the constitutional mandate requiring that a judgment shall not be reversed because of the jury’s misdirection, “unless, after an examination of the entire cause, including the evidence, the *906 court shall he of .the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, §4½.)

The evidence relating to the homicide, including the statements of Thomas concerning the circumstances surrounding its commission, provides ample basis for characterizing the…

This is an appeal from a judgment imposing the death penalty for murder in the first degree and from an order denying defendant's motion for a new trial. It is contended, among other things, that the evidence is insufficient to establish the homicide as murder of the first degree, that it shows at most murder of the second degree or manslaughter, and that the trial court erred to the prejudice of defendant in instructing the jury relative to the elements of the two degrees of murder and the burden of proof.

[1a] Upon an examination of the record it appears to us that the evidence, while not wholly insufficient as a matter of law to support the adjudication of first degree murder, is ample to sustain a finding that the homicide was manslaughter or murder of the second degree. It was, therefore, incumbent upon the jury to resolve the material conflicts in the evidence, including the divergent inferences, and thereupon to determine the class or degree of the offense. In order to make such determination it was essential that the jury be adequately and accurately informed as to the elements of each of the degrees of murder as well as those pertaining to manslaughter, and…