Donnelly

The defendant was charged with the crime of murder. Both he and the deceased were prisoners in the state prison at Folsom. The jury returned a verdict of guilty of murder in the first degree, without recommendation, and the defendant was sentenced to pay the extreme penalty. He made a motion for a new trial, which was denied, and he now appeals from the judgment of conviction and from the order denying his motion.

Defendant urges but two points: 1st, that the evidence does not show that degree of premeditation essential to constitute murder in the first degree; 2d, that the court erred in refusing certain instructions requested by him.

In support of his first contention defendant claims that there is no evidence showing any motive for the killing of Morse by himself, except a sudden quarrel that arose between Morse and a fellow prisoner, in which the defendant participated. He admits that the killing was accompanied with malice, but contends that the evidence does not show a deliberate and premeditated attempt to slay Morse, and, lacking in this intent, is not sufficient to sustain a conviction of murder in the first degree. We have carefully read the entire record and are…