Galloway

Appellant was convicted and sentenced to pay the death penalty for murder of one Andrew Pashuta. In support of his appeal from the order denying a new trial he urges insufficiency of the evidence to justify conviction for first degree murder, the elements of premeditation and deliberation being, so it is claimed, wholly unproved; erroneous instructions given by the trial court to the jury, and prejudicial misconduct on the part of one of the jurors.

The homicide occurred on the last night of the Rose Festival at San Jose, Saturday, May 22, 1926, about midnight, on a road near the highway to Monterey, some four or five miles from San Jose. On the preceding Thursday appellant and deceased had met for the first time in St. James Park and became acquainted through their mutual fondness for the ukulele, which both had and played. They spent Thursday evening, part of Friday, and Friday and Saturday evenings together. Appellant was at that time about twenty-four years of age, while Pashuta was a year or so younger. Pashuta resided in San Jose at the house of Mrs. Ida M. Bunch, 353 South Fourth Street, and as appellant was only in town for the festival, Pashnta introduced him to Mrs.…