Didonato

The appellant, Alfredo DiDonato, and one George Martin were jointly charged with and tried for the crime of murder. Each was found guilty of murder of the first degree, and life imprisonment was fixed as the penalty. From the judgment of conviction and the order denying his motion for a new trial DiDonato has taken this appeal.

The trial court charged the jury in effect that it should either find the accused guilty of first degree murder or acquit them of any offense whatever; and appellant’s main contention on this appeal is that in thus restricting the issue before the jury, prejudicial error was committed, it being claimed with respect thereto that the evidence adduced at the trial admitted of verdicts either of second degree murder or manslaughter.

Section 189 of the Penal Code declares that all murder which is perpetrated by means of poison, lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate certain felonies enumerated therein, including burglary, is murder of the first degree; and all other kinds of murders are of the second degree; and “It is thoroughly…