Fleming

Defendant was accused of the crime of murder, together with three prior convictions. The first prior conviction of which defendant was charged was burglary ; the second, robbery; and the third, assault with intent to commit murder. All of said convictions were under judgments rendered in this state. Defendant admitted the prior convictions, but pleaded not guilty to the charge of murder. He was tried by a jury which rendered a verdict of guilty of murder in the first degree without fixing the punishment for said crime. The court thereupon rendered judgment imposing the death' penalty. From this judgment and from an order denying his motion for a new trial the defendant has appealed. Appellant in his brief has set forth thirty-two specifications wherein he claims that error was committed, and upon which he relies for a reversal of the judgment. These specifications are discussed quite fully in a lengthy brief in which each is given attention in detail. The argument of appellant may be properly divided into four general divisions in which the following contentions are respectively made:

1. That the evidence is insufficient to support a verdict of guilty in that it shows that…

I dissent. The facts which appear from the record do not, in my opinion, justify a judgment of murder in the first degree. I can find no evidence from which it may be inferred that there was premeditation. The defendant and deceased were strangers, and their contact consumed but a few minutes. The deceased, it is clear, was the aggressor; as he passed through the barroom door, he pushed the defendant. The shooting commenced almost immediately afterwards. The only direct testimony concerning the shooting was given by the woman who called herself the wife of the deceased, and, as the majority opinion points out, “her account of the affair was conflicting, incomplete and exceedingly indefinite”. It was, moreover, decidedly different from that given previously at the coroner’s inquest. The “gas station” in front of which the deceased was killed was a combination of a bootleg place and house of prostitution, and all of the characters involved in this case, either as witnesses or principals, were frequenters of the place.

Under these circumstances, I think it probable that the jury permitted the criminal record of the defendant to warp its judgment, and that the proper verdict, and the…