Wright

— Defendant was charged with violating section 4500 'of the Penal Code in that, while undergoing a life sentence in a state prison, he assaulted with malice aforethought Robert Grayson, a fellow prisoner, by means of force likely to produce great bodily harm and that Grayson died as a result of the assault. 1 A jury found that defendant was guilty as charged and that he was sane at the time of the commission of the offense. His motion for new trial was denied, the punishment was fixed at death, and the appeal comes to us automatically under subdivision (b) of section 1239 of the Penal Code.

On the morning of November 20, 1959, defendant and another prisoner, Howard Regan, approached Grayson in an exercise area adjacent to their cells and talked to him about some cigars he assertedly had taken from Regan. Defendant and Grayson took about ten steps toward the rear of the exercise area, and then defendant grabbed him by the collar and, while holding him, struck him several times with a knife. A guard called to defendant to stop, and defendant released Grayson, who fell to the floor with knife wounds in his chest, stomach and arm. After the assault defendant threw the knife out of a…