Whitehorn

Norman Whitehorn and Charles Hummel were charged with the murder of Mrs. Angela Gums. White-horn admitted a prior conviction of kidnaping and rape. The jury found both defendants guilty of first degree murder and determined that Whitehorn should suffer the death penalty and Hummel life imprisonment. Whitehorn’s motion for a new trial was denied, and his appeal is before us automatically under subdivision (b) of section 1239 of the Penal Code. Hummel has not appealed.

Mrs. Gums’ death was due to strangulation, and there were a number of scratches on her body, some of which in the opinion of the autopsy surgeon occurred shortly before she died. At the time of her death she was 37 years old, appellant was 24, and Hummel was 18. Appellant and Hummel were arrested after Hummel, who was a private in the Marine Corps, had told a marine sergeant that he and appellant were implicated in the death of Mrs. Gums. The prosecution’s evidence against appellant consisted mainly of statements freely and voluntarily made by him to law enforcement officers following his arrest.

On the night of April 21, 1962, appellant met Hummel, whom he had known for several weeks, and they went to a restaurant…