Malone

This appeal is from a judgment of conviction of the defendant upon a charge of murder in the first degree, based upon the verdict of the jury finding him guilty of that offense without recommendation, and from an order denying the defendant a new trial.

The undisputed evidence in the case showed that the defendant and his victim were husband and wife and that they had been separated some time before the homicide, and that such separation had been caused, in part, at least, by the drinking habits of the defendant. After such separation the wife obtained employment in a drug-store, which also contained a soda fountain and luncheon counter, in the city of Los Angeles, where she was engaged in waiting upon customers on the morning of December 7, 1927, when the defendant entered the place in a state of intoxication and demanded that his wife should go with him somewhere, which she refused to do, and, in connection with her refusal, reproached him with having been drinking; whereupon the defendant went out and shortly thereafter returned, armed with a 32 Colt’s automatic pistol, seeing which his wife undertook to flee, but was followed by the defendant into the kitchen, where she was…