Skaug

A Nevada statute, § 10068, Nevada Compiled Laws 1929, provides, in *715 part: “Every person convicted of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury trying the same; * * *” The provision-was taken from the California Penal Code, § 190. Prior to its adoption by the Nevada legislature in 1907 the parent statute had been uniformly construed by the California courts as requiring the court to impose the death penalty on conviction of first degree murder where the jury did not itself fix the punishment. Applying the familiar rule that a statute taken from a sister state will be presumed to have been adopted with the construction placed upon it by the courts of that state, the Nevada courts have consistently given the provision a like interpretation. State v. Russell, 47 Nev. 263 , 220 P. 552 , 222 P. 569 ; Kramer v. State, 60 Nev. 262, 273-276 , 108 P.2d 304 .

Appellant was convicted of first degree murder in a Nevada court' in 1944. The jury having failed by its verdict to prescribe the penalty, the court imposed the death sentence. On appeal, State v. Skaug, Nev., 161 P.2d 708 , the judgment was affirmed…