People v. Clayton

Defendant was convicted of second degree murder.

The questions on appeal are: (1) Did the court, in instructing on second degree felony murder improperly advise the jury that provocation by words alone was no defense to the felony charged (assault with a deadly weapon) ? (2) Did the court admit into evidence testimony of a missing witness given at the preliminary hearing on an insufficient showing of due diligence in the efforts to locate said witness ?

We answer both questions in the negative and also find no miscarriage of justice. (Cal. Const., art. VI, §13.)

On the night of October 27, 1965,…