Fitzgerald

Defendant was convicted of murder in the first degree, and the jury fixed the penalty at death. Defendant’s motion for a new trial was denied. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

In a San Francisco bar on the evening of August 2, 1960, defendant overheard M. J. Young and George Bonn, the deceased, discuss a possible trip to Reno, Nevada, to gamble. He offered to drive them there, and they left San Francisco the following morning in a car driven by defendant that he had obtained from a friend.

Several miles east of Truckee they left the main highway. Defendant testified that he suggested the detour to show the other two men a good deer hunting area. Young testified that defendant said he wanted to find a certain ranch to see a prospective purchaser of a tractor.

Young’s testimony and defendant’s are in sharp conflict as to what happened after they finally stopped. According to Young, defendant took a .22 caliber pistol from the glove compartment of the car, forced Bonn and Young to remove their trousers, and then rifled their pockets. Several hours later, as defendant was making ready to leave the scene of the robbery, Bonn struck him from behind with a…