People v. Watts

pro tem. — Defendant was charged with the murder of Wilfred Hey, alleged to have been committed in San Bernardino County on or about November 26, 1924. He was convicted of murder in the first degree and was sentenced to suffer the extreme penalty. The appeal is from the judgment and from an order denying him a new trial.

In the latter part of December, 1924, a body, that of a man who had been dead for some time, was found at a

The uncontradicted evidence for the People tended to establish a circumstantial case against the accused the outstanding features of which are substantially these: Wilfred Hey was a young man having the appearance and speech of an Englishman. He was about twenty-eight years of age, was approximately five feet four inches tall, weighed about one hundred and twenty-five pounds and had brown, or reddish-brown hair. He had lived at the Kalamazoo Apartments in Detroit, Michigan, from July, 1924, to the latter part of the month of October following, when he left that city in company with defendant in defendant’s automobile — • a second-hand Overland touring car. Defendant had lived with Hey in the latter’s apartment for some three or four weeks previous to their departure from Detroit. Through this association it may be inferred that he had an opportunity to acquire some knowledge of Iley’s financial affairs. About two months before the two men left Detroit Hey called upon the assistant manager of the Peoples State Bank at that city and asked that the bank write to England regarding the sale of some British war bonds which he owned and which he desired to sell. The bonds, which were then with the Union. Bank of Manchester, England, were worth about $1,500. In furtherance of Hoy’s wishes a letter, signed by him, was sent by. the Peoples State Bank to its foreign correspondents requesting them to sell the bonds and to transfer the proceeds to the bank at Detroit.

1 Hey was not again heard of until November 7, 1924, when the Detroit bank received a telegram, purporting to have been sent by a bank at Bock Springs, Wyoming, inquiring if a check drawn on Hey for ten dollars was good. On November 10, 1924, the Detroit bank received another telegram, purporting to have been sent by Hey from Ogden, Utah, asking that the balance of his savings account be transmitted to the Security State Bank at Ogden. On the next day the Detroit bank transmitted the money to the Ogden bank by telegram.

On the same day that the Detroit bank received Hey’s telegram from Ogden, the president of the Security State Bank at the latter city prepared and delivered to Hey the form of a telegram to the Detroit bank. This document was admitted in evidence as People’s exhibit 2. There was written on it the following, in the handwriting of the president of the Ogden bank: “Peoples State Bank, Detroit, Michigan. Telegraph Security State Bank, Ogden, Utah, balance of my savings account. Waive identification. Will write you regarding sale of British war bonds and transfer of money when I reach my destination.” This paper was found on the clothing of the body discovered on the desert in San Bernardino County. It is a fair inference from the evidence that Hey kept the document, though he doubtless used it as a model from which to compose the telegram which he sent to the Detroit bank; for on the day that he received this bit of writing from the president of the Ogden bank he and defendant called at the office of the Western Union Telegraph Company at Ogden and there caused to

Defendant and Hey arrived in Ogden about November 8, 1924. There they remained for about one week. Their automobile was in need of some repair when they reached that city, but neither had any money for that purpose. Indeed, they came to Ogden “stranded,” and had not the wherewithal to buy their meals or to pay for lodgings. Defendant borrowed a small sum from a garageman at Ogden with whom he had left his car for needed repairs. The money which the Detroit bank remitted to the Ogden bank in response to Hey’s telegram of November 10th was paid to Hey on November 15, 1924. Upon that occasion defendant accompanied Hey to the bank. Upon the payment of the money to Hey, defendant said: “Now that we can get out of town, we better go.” At the same time defendant told the cashier that they had come from Detroit, that they were going to Los Angeles and that they were traveling in an Overland automobile. On the preceding day defendant had called at the Security State Bank unaccompanied by Hey, and had then asked the cashier if the money had come from Detroit for Wilfred Hey, telling the bank officer that they had run out of money, that they were out of money when in Rock Springs, Wyoming, that they had to send for money while there and that they had received ten dollars, which paid their expenses to Ogden; adding that “the damned fool [referring to Hey] didn’t know anything; that he only drew ten dollars when he ought to have drawn it all.” Before the bank at Ogden paid Hey the money which the Detroit bank had remitted, the cashier asked him if he had anything that would indicate that he was Wilfred Hey. Whereupon the British war bonds were mentioned — defendant being present at the time. Hey, in defendant’s presence, then produced a memorandum which had been given to him by the bank at Detroit and which referred to the authority that he had given that bank to sell the war bonds and to credit his account with the proceeds.

We next hear of defendant and Hey at Silver Lake, where the twain were seen together on the evening of No

About a month later, at a spot about twenty-nine miles south or southwesterly from Silver Lake and in the heart of San Bernardino County, the body referred to in the early part of this opinion was found. It was that of n man approximately five feet four inches tall, weighing from 125 to 130 pounds. It lay on the surface of the ground about 92 feet south of a county road, in a region where the road passes through a dry wash 300 feet wide. The place of the gruesome find is several miles from any human habitation, in wild, desert country. The corpse was covered with canvas which had been weighted down with rocks. The body was fully dressed, save that there was no collar, tie, hat or cap on it. The trousers and coat were of a dark blue texture, with fine white stripes. Between the body and the county road were two small bushes. The corpse lay just beyond these bushes and behind a small rise in the bank of the wash. When found, the body was in an advanced stage of decomposition. Wild animals had so stripped the skull of flesh that there were no recognizable features. The skull was as white as a sheet of paper. The vertebrae from the collar-bone up were exposed. On the top of the skull was an irregular, depressed fracture, triangular in shape, about an inch and a half long and three-quarters of an inch across. There was another large open

Extending from the • edge of the road to the spot where the body was found was a track or depression in the desert sand, about eighteen inches in width, which looked as though a human body had been dragged over it. In this track, five feet from the road, was a blood-soaked spot on the sand, about six inches in diameter. The evidence discloses that the blood was that of a human being. Seventeen feet farther, in the direction toward which the body lay, was another spot where the sand was soaked with human blood. Scattered about the body were bunches of hair of a reddish-brown color. The deputy coroner of San Bernardino County, who was present when the body was found, testified that in his opinion the hair was that of a human being.

On the clothing of the deceased, in the watch pocket, were found two ferry tickets, issued by the Detroit and Windsor Ferry Company, entitling the holder to passage by ferry between the city of Detroit and the near-by town of Windsor. There was also found in the same pocket three small slips of paper and the telegraphic form which the president of the Security State Bank at Ogden had delivered to Hey on the 10th of November, and which, as we have stated, was introduced in evidence as People’s exhibit No. 2.

Coming now to defendant’s actions subsequent to the time when he and Wilfred Ilcy were at Silver Lake on the evening of the 25th of November: Defendant arrived in Los Angeles in the latter part of that month. He told his

With this synoptical statement of the most important and. controlling facts and circumstances shown by the People and upon which a conviction was sought, we proceed to a consideration of appellant’s points in the order of their presentation.

[2] The evidence was sufficient to warrant the jury in finding that the body was that of Wilfred Hey. The fact that the corpse was found at a spot not more than an hour’s ride by automobile from the place where Hey was last seen alive, the fact that the body was that of a man of about the same size and weight as Hey, having the same colored hair and clothed with outer garments of substantially the same general color as those worn by Hey when he was seen at Silver Lake, and that there was found in one of the pockets a ferry .ticket entitling the holder to passage between Windsor and Detroit — the city where Hey had lived for some three or four months before embarking upon his fatal adventure — are pregnant circumstances, to say the least. It may be that they alone would not suffice to justify the jury in finding that the body was that of Wilfred Hey. But when to these circumstances we add the further fact that there was found in the vest pocket of the deceased the form of telegram which the president of the Security State Bank at Ogden had made out and delivered to Hey but a few weeks previously, the conclusion that the body was that of Wilfred Hey becomes well-nigh irresistible. But this is not all. In addition to these damning circumstances we have appellant’s incriminating conduct after the disappearance of his traveling companion. His brazen effrontery in boldly representing himself as Wilfred Hey when he secured from the Bank of Italy the proceeds of the British war bonds clearly indicates an utter absence of that fear of detection which he must have felt did he not know that the body of the man he was impersonating lay rotting on the desert sands. In the light of these circumstances the determination of the jury is conclusive upon this court. (People v. Peete, 54 Cal. App. 333 , 347 [ 202 Pac. 51 ]; State v. Barnes, 47 Or. 592 [ 7 L. R. A. (N. S.)

[3] There was sufficient evidence to justify the jury in finding that appellant was the slayer of Hey. He had been the dead man’s traveling companion while the two were making their way across the continent with Los Angeles as their goal. He was the one who last .was seen with the slain man at a small settlement not many miles from the spot on the vast stretch of uninhabited desert where the body was found. He had a mercenary and sordid motive for the commission of the crime, i. e., a desire to possess himself of the money to which his murdered companion was entitled. This motive was later exhibited by his false representation to the employees of the bank at Los Angeles that he was Wilfred Hey and that as such he was entitled to the proceeds from the sale of Hey’s British war bonds. The confident assurance with which appellant enacted the impostor’s role when posing as Wilfred Hey is explicable upon the theory that he was fully aware that the man whose name and character he was assuming could not rise up in any human tribunal and there call him to account for the money gained through his treachery and deceit. And then there is appellant’s flat refusal to tell the sheriff when it was that he last saw the deceased. If appellant did not slay Hey he must have known who it was that did the deed; for it is a fair inference from all the circumstances in the case that he was with his companion when the latter was felled by the death-dealing blows. It does not seem reasonable, therefore, that appellant, if he were innocent, would have refused to tell what he knew of the whereabouts of his slain companion. The withholding of information, directly invited, upon a subject of such grave import and which so vitally concerned the welfare of the person with whom he had been so closely associated, is a circumstance which betokens that fear of self-betrayal which grips the heart of one who knows himself as a bloodstained murderer. Who, if not appellant, was the person who so carefully covered the body with canvas and secreted it behind the bushes ninety-two feet from the highway? He was the person who last was seen with the unfortunate victim of the murderous assault, and he must have had some knowledge of what had befallen the man

The circumstances which we have recited point so directly to appellant as the guilty agent who was responsible for Hey’s untimely taking off that we do not hesitate to hold the evidence sufficient to justify the verdict. It of course is possible that appellant did not murder Hey. But as was said in Ausmus v. People, supra, “ . . . until the faculties of man are unfolded and expanded so that all things are known, we must act on circumstances as they appear, logical deductions made and presumptive proof, or leave the worst crimes unpunished.”

[4] The venue was proved as laid. The remains were found at a place which is many miles from any one of the exterior boundaries of San Bernardino County. The pools of blood in the immediate vicinity of the body show that the slaying occurred not far from the spot where the corpse was discovered.

[5] The evidence was sufficient to warrant the jury in finding the homicide to be murder in the first degree. The circumstances all indicate that the deceased was wilfully and brutally slain for his money. There was no evidence of a combat or of a struggle. No circumstances of mitigation, justification, or excuse were shown. Two crushing blows on the head with a deadly weapon — some blunt instrument sufficiently hard and heavy to produce such lethal wounds — had evidently ended the life of Wilfred Pley. From the character of the weapon used, the nature of the wounds inflicted and the acts and conduct of appellant subsequent to the slaying, the jury had the right to infer that it was wilful murder, done with the fell purpose of acquiring the proceeds of the dead man’s British war bonds by subsequently resorting to that form of deception which appellant later did practice upon the bank in Los Angeles. So inferring, the jury was warranted in returning a verdict of murder in the first degree. (People v. Mahatch, 148 Cal. 200 , 203 [ 82 Pac. 779 ]; People v. Machuca, 158 Cal. 62 [ 109 Pac. 886 ]; People v. Bellon, 180 Cal. 706 [ 182 Pac. 420 ]; People v. Erno, 195 Cal. 272 [ 232 Pac. 710 ]; People v. Peete, supra; Killer v. Commonwealth, 124 Pa. St. 92 [ 16 Atl. 495 ]; Commonwealth v. Drum, 58 Pa. 9 ; State v. Welch, 36 W. Va. 690 [ 15 S. E. 419 ].)

[6] No error was committed in permitting the deputy coroner, who was present when the strands of hair were

[7] There was no error in admitting in evidence a map of San Bernardino County. It was used in connection with the testimony of certain witnesses for the purpose of representing the relative location of the places testified to by them. It is proper for courts to admit in evidence illustrative charts and maps. (Foley v. Northern California, etc. Co., 165 Cal. 107 [ 130 Pac. 1183 ]; 22 C. J. 910.) The map was a public document. It was a part o.f the files in the office of the county surveyor. A published map, made by persons indifferent between the parties, is prima, facie evidence of fact of general notoriety and interest. (Sec. 1936, Code Civ. Proc.)

[8] No error was committed in admitting exhibits 17, 18, and 20 in evidence. Exhibit 17 was the telegram from

[11] The curtailment of defendant’s cross-examination of the witness Harrod is not reversible error. It -will be recalled that this witness testified that he saw defendant at Silver Lake on the evening of November 25, 1924. This was on his direct examination. On cross-examination Harrod testified that he did not see defendant again until March or April of 1925, when he saw him in a cell in the county jail at San Bernardino; that when he saw defendant in his cell he recognized him, and that no one pointed him out. The witness was then asked this question by defendant’s counsel: “Will you state that you did not testify at the preliminary hearing that you went up in the cell and a man said ‘There he is,’ and you turned around at this preliminary hearing and pointed out Fred Weaver as the man that pointed out Watts to you?” The court sustained an objection to the question upon the ground that it was not the proper way to impeach the witness. Impeachment was not necessarily the purpose of the question. Only as the witness answered might questions by way of direct impeachment have followed. The ruling was an improper restriction upon the right -of cross-examination. (People v. Jones, 160 Cal. 358 , 365 [ 117 Pac. 176 ]; People v. Hart, 153 Cal. 261 , 266 [ 94 Pac. 1042 ].) However, a survey of the entire record compels the conclusion that the error has not resulted in a miscarriage of justice, and that it is a ease for the application of section 4% of article VI of the constitution. Even if the question had been permitted and the witness had given it an affirmative answer, it is inconceivable that the jury could have rejected as incredible Harrod’s positive testimony that he saw the defendant and Hey at Silver Lake. Harrod’s testimony, like that of all the other witnesses for the prosecution, was not contradicted in any particular whatever. If, after having had his memory refreshed by the question asked of him on cross-examination, Harrod had admitted that at the preliminary examination he did testify that defendant was pointed out to him when he saw the latter in his cell, that fact would not necessarily have been inconsistent with the witness’ testimony that he recognized defendant when he saw him in the cell. Had witnesses on behalf of the defendant been produced, and had they given testimony contradicting Har

[13] The court did not err in giving an instruction which, in effect, told the jurors that they should either find defendant guilty of murder in the first degree or acquit him of any offense whatever. After having carefully defined the crime of murder and each of the two degrees thereof, as well as manslaughter, and after having fully instructed the jury as to the essential elements of each of those offenses, the learned trial judge gave an instruction to the effect that the only degree of murder for the jurors to consider was murder in the first degree, and that they were not to consider any other degree of murder or manslaughter in their deliberations. In consonance with this instruction but three forms of verdict were handed to the jury, viz.: murder in the first degree, murder in the first degree with the penalty of life imprisonment, and not guilty. Under the circumstances disclosed by all the evidence, the giving of the instruction was not error.

In a criminal case instructions are always to be given with reference to the facts proved before the jury. Accordingly, it is the established rule that on the trial of a person charged .with murder it is proper to refuse to give an instruction as to a lesser degree than that of murder in the first degree, or as to a lesser offense included within the crime charged, if the evidence is of such a nature as to warrant only a verdict of first degree murder, in the event that the accused is guiby at all. (People v. Rogers, 163 Cal.

In the eases cited by appellant (People v. Valencia, 43 Cal. 552 , People v. Ah Lee, 60 Cal. 85 , and People v. Chew Sing Wing, 88 Cal. 268 [ 25 Pac. 1099 ]), the jury in effect was instructed that from the mere killing of the deceased the law presumes murder in the first degree. (See People v. Bawden, 90 Cal. 197 [ 27 Pac. 204 ].) Such an instruction obviously is erroneous, since it omits from the definition of murder in the first degree the essential elements of deliberation and premeditation. It is, of course, the peculiar province of the jury to say in each and every ease whether the killing was perpetrated with that deliberation and premeditation which are necessary to constitute it murder of the first degree. There was no interference with that prerogative in the present case. Here the jurors were carefully and correctly advised by the court’s instructions as to what constitutes murder in the first degree, and were told, in substance and effect, that to justify a verdict of guilty every essential element of the crime must be established beyond a reasonable doubt.

[14] The rule that the court need not charge with respect to a lower degree of murder or an included offense, where there is no evidence tending to show the commission of a lesser crime than murder in the first degree, is not confined to those specific homicidal acts particularly enumerated by the legislature in its code definition of murder in the first degree, and which carry with them conclusive evidence of deliberation and premeditation. That is to say, the rqle is not limited to cases where the killing was perpetrated by means of poison, lying in wait, etc., or where the slaying was committed in the perpetration or attempt to perpetrate some one of the felonies enumerated in the statute, such as robbery, arson, etc. On the contrary, it extends to all cases where there is no evidence tending to show the commission of a lesser offense than murder in the first degree. In People v. Lapara, supra, this court sanctioned the application of the rule to a case where the deceased was shot while driving a truck, and enmity was

Nor is the rule confined to those cases where the evidence of the slaying is direct and positive. The mere fact that the evidence is circumstantial would not of itself require the trial court to charge on murder in the second degree. There are many eases which hold that though there be no eye-witness to the killing and the evidence is entirely circumstantial, no instruction upon a lesser offense than that of murder in the first degree need be given where the circumstances disclosed by the evidence will not permit a reasonable inference that the defendant was guilty of a lesser grade of homicide. (Monmouth v. State, 54 Tex. Cr. 407 [ 114 S. W. 114 ]; Pearl v. State, 43 Tex. Cr. 189 [ 63 S. W. 1013 ]; State v. Grba, 196 Iowa, 241 [ 194 N. W. 250 ]; Higgins v. Commonwealth, 142 Ky. 647 [ 134 S. W. 1135 ].)

[15] The instruction which was given in this case, limiting the jury to a verdict finding the accused guilty of the highest offense or not guilty of any crime whatever, was fully warranted by the facts disclosed by the evidence. The blows which caused the death were inflicted with a heavy, blunt instrument which, under the circumstances of its use, may well have been found to be a deadly weapon. There was, as we have said, nothing to show a struggle or a combat. On the contrary, the evidence shows that if the killing was done by defendant the deceased was put to death in furtherance of a base, mercenary motive. Under these circumstances we have no hesitancy in saying that if defendant was guilty of anything he was guilty of brutal

Moreover, even if the giving of the instruction were error, it could not have harmed appellant. As we have stated, the jurors, who were fully instructed as to the ingredients of the crime of murder in the first degree, were told in effect that if they were not satisfied that defendant was guilty of that offense they must acquit him altogether. It will be presumed that they heeded this instruction and performed their whole duty in accordance with it. If they were not satisfied beyond a reasonable doubt that appellant was guilty of first degree murder, under the instructions they would have acquitted him. The instruction, therefore, would not have justified a reversal even if it had been error to give it. (People v. Lopez, 135 Cal. 25 [ 66 Pac. 965 ].)

[16] There is no merit in the claim that the trial court erroneously instructed upon the weight of circumstantial evidence. The trial judge gave several long instructions dealing with the subject of circumstantial evidence. In one of them the jury was advised that no conviction could be had unless the People established beyond a reasonable doubt that the death of Hey was caused by homicidal means; by another the jury was told that a conviction could not be had unless the prosecution established beyond a reasonable doubt that the injuries causing the death were inflicted in San Bernardino County; and in still another instruction the court charged the jury that a verdict of guilty could not be returned unless the People had established beyond a reasonable doubt that the defendant is the person who committed the murder, if murder there was. In the course of these- instructions the trial court told the jury, -in substance and in effect, that though these ultimate facts — death by homicidal means, the infliction of the lethal injuries in San Bernardino County and the identity of the defendant as the slayer — must be proved beyond a reasonable doubt, still they need not be shown by direct evidence but “may be established as satisfactorily and as conclusively by circumstantial as by direct evidence.” This language did not

No prejudicial error was committed in giving the instruction upon circumstantial evidence which substantially conforms with the one that was approved in People v. Morrow, 60 Cal. 142 , and People v. Urquidas, 96 Cal. 239 [ 31 Pac. 52 ], The only portion of the instruction of which there can be any just criticism is the following: ‘ ‘ There is nothing in the nature of circumstantial evidence that renders it any less reliable than any other class of evidence.” This language is more in the nature of an argument than a declaration of law, and it were better had it been omitted; but it is not prejudicially erroneous. (People v. Wilder, 134 Cal. 182 [ 66 Pac. 228 ]; People v. Howard, 135 Cal. 266 [ 67 Pac. 148 ]; People v. Ung Sing, 171 Cal. 83 [ 151 Pac. 1145 ].)

[17] The instruction upon the subject of “flight” was not harmful error. In substance it is such an instruction as was criticised in People v. Jones, supra. It failed to admonish the jury that the defendant must know that a crime has been perpetrated and that he is accused of its commission. This instruction, though frequently frowned upon by this court, never has been held to be ground for reversal, save in those cases where it appears that the defendant has been prejudiced by it. (People v. Sainz, 162 Cal. 242 [ 121 Pac. 922 ]; People v. Lee Nam Chin, 166 Cal. 570 [ 137 Pac. 917 ]; People v. Erno, supra.) No substantial injury appears here. In finding appellant guilty the jury necessarily must have found that the crime had been committed. And no other inference can reasonably be drawn from the evidence than that appellant knew that

There is no merit in the claim that the instructions assume the existence of certain incriminating circumstances. To support their contention in this regard, counsel have selected from the instructions on circumstantial evidence four or five detached passages. In the course of the instructions which charged the jury that it was incumbent upon the prosecution to establish, beyond a reasonable doubt that the body was that of Wilfred Hey, that the death was caused by homicidal means, that the injuries causing the death were inflicted in San Bernardino County and that defendant is the person who murdered Hey, the trial court, after saying that each of these facts could be established by circumstantial evidence, told the jury, in substance and effect, that these major facts might be established by certain circumstances which the instructions specifically mentioned, if the circumstances so referred to by the court were established to the satisfaction of the jury beyond a reasonable doubt, and if the jurors were satisfied from such circumstances, to a moral certainty and beyond a reasonable doubt, of the existence of such ultimate facts of identity, death by homicidal means, etc. This, in substance, is the purport of the instructions when the charge is considered as a whole, It is clear, therefore, that the instructions, when so considered, do not assume the existence of any of the circumstances mentioned in them.

[18] The court did not charge the jurors that they could take into consideration only such probative facts as were established beyond a reasonable doubt. In the course of the instructions to the effect that the identity of the dead body, death by homicidal means, etc., could be established by circumstantial evidence, the court advised the jurors that if they believed the specifically enumerated circumstances had been established beyond a reasonable doubt they could consider them “together with all other facts and circumstances, if any, shown by the evidence beyond a reasonable doubt.” In criticism of the italicized part of this instruction, appellant says that, while it is necessary that the essential elements of the crime shall be established be

[19] There is no merit in the claim that the court charged the jury that a particular fact or group of facts afforded sufficient proof of identity of the deceased, cause of death, etc. The learned trial judge was careful to advise the jury that though the circumstances referred to in the instructions, if shown by the evidence beyond a reasonable doubt, might be taken into consideration, identification could be established only “if such evidence [i. e., the circumstances adverted to] is sufficient to convince the

[20] There is no basis for the claim that the trial court charged that defendant could be found guilty of murder in the first degree without including in the charge the essential elements of deliberation and premeditation. From the body of those instructions which advised the jury that the identity of the deceased and death by homicidal means could be established by circumstantial evidence, appellant has wrenched the following detached passages: “ ... if you believe beyond a reasonable doubt that Wilfred Hey was unlawfully killed as alleged in the information, and . . . th|at defendant killed and murdered the said Wilfred Hey, as alleged in the information, then you will find the defendant guilty”; and: “If the jury further believe . . . beyond a reasonable doubt that the defendant inflicted the wound or wounds, and thereby caused the death of Wilfred Hey, as alleged in the information, then you will find the defendant guilty”; also: “ ... if you believe . . . beyond a reasonable doubt that the dead body found was the body of Wilfred Hey, and that the defendant, at about the time and place alleged in the information, killed and murdered the said Hey, then you will find the defendant guilty as charged.” It is claimed that because the jury was instructed that the defendant, if guilty at all, could only be found guilty of murder in the first degree, these instructions are erroneous for the reason that they fail to state that the killing must be preceded by and be the result of the concurrence of deliberation and premeditation. In the two excerpts first above quoted the jurors were advised that they should return a verdict of guilty if they believed that the defendant murdered Hey and caused his death “as alleged in the information.” The information charges that defendant murdered Hey “wilfully . . . and with malice aforethought.” [21] The words “malice afore

We have examined the record with care, and we find no error which would justify a reversal.

The judgment and the order denying a new trial are affirmed.

Waste, C. J., Shenk, J., Richards, J., Curtis, J., and Seawell, J., concurred.

Rehearing denied.