Vital

The minutes of the trial of this case and which constitute a part of the record,-state that the court read to the jury “instructions asked by the respective parties, and allowed by the court, and those given by the court on its own motion”; but the record filed here does not contain any of the instructions thus referred to, except those given upon request of the defendant. One of the points made by the appellant is that the court erred in omitting to instruct the jury that they had the discretion, in case they found' the defendant guilty of murder in the first degree, to relieve him from the extreme penalty of death, and to say, by their verdict, that his punishment should be confinement in the state prison for life. We do not think we should determine this question upon the record now before us; at least until an opportunity is given to the attorney general to supply the instructions given by the superior court upon its own motion and upon request of the people, if such instructions were actually given. It is the duty of a judge to properly indorse all instructions given on his own motion, and when so indorsed they form a part of the record on appeal: People v. January, 77 Cal.…