Sameniego

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 167 Appellants were convicted of murder of the first degree, with the penalty of life imprisonment, and appeal from the order denying their motion for a new trial and from the judgment. On October 23, 1928, at about midnight the deceased, Ralph Trump, stopped his automobile across the street from the residence of Miss Marjorie Ullman, who was riding beside him in the front seat of the vehicle. They had conversed for a few minutes when two young men approached on foot from the direction in which the car was faced. One of these men ran to the right front fender and stood there. The other paused a moment in front of the automobile with a pistol in his hand and then ran around to the driver's seat and, without a word being spoken and without any motion on the part of the occupants of the car, shot the deceased through the heart, causing almost immediate death. The defendants were arrested August 2, 1930, in connection with the investigation of a series of robberies and, in the course of the questioning, appellant Sameniego stated that Mossberg had…

The first two points in the petition present nothing not covered by the opinion filed herein and are merely a restatement of points previously argued. Reference is made to the statement of defendant Mossberg in his confession that his only explanation of the killing was that he was "doped with dial ciba that I didn't know what I was doing", as indicating that the homicide was only murder of the second degree. Counsel has allowed his enthusiasm to stampede his logic, for the sworn testimony of the defendants and their witnesses was as to a detailed alibi, and to now urge the statement of Mossberg in his confession as true or worthy of credence is to argue that the defense of alibi was fabricated and supported by perjured testimony. [13] However, had the defendants desired to urge the defense of unconsciousness at the time of the crime they should have introduced evidence thereof at the trial. In the absence of evidence to support it the question was not in the case and hence did not require an instruction from the court. The contention that independent of the evidence of the confession the record is devoid of evidence to support the verdict as to Sameniego is wholly without merit.…