Pollard

After a jury trial, appellant Willie Wade, Jr., and one Pollard were found guilty of first degree murder. As to appellant the jury fixed the penalty at death, and as to Pollard at life imprisonment. Upon appellant’s motion for a new trial, the court reduced his penalty to life imprisonment. (Pen. Code, § 1181, subd. 7.)

On this appeal from the judgment and from the order denying his motion for a new trial, appellant advances only one contention, namely: that the trial court erred in failing to instruct the jury as to the degrees of murder.

In appellant’s opening brief it is stated: “Although the error pointed out by this counsel may be a substantial one, it is not the type of error that would require a reversal since the evidence is substantial in supporting a conviction of murder in some degree.” Appellant further submits that this court “has authority under sections 1181 and 1260 of the Penal Code to modify a judgment of murder in the first degree by reducing the degree of the crime to murder in the second degree” and, in conclusion, suggests that this court should modify the present judgment accordingly.

Viewed in the light most favorable to the respondent, the record…