The defendant was charged by information filed in the superior court of the city and county of San Francisco on January 4, 1912, with the crime of murder, alleged to have been committed on November 18, 1911, in willfully, unlawfully, feloniously, and with malice aforethought killing one Benjamin A. Goodman, a human being. Having entered a plea of not guilty, his trial resulted in a verdict of the jury finding him guilty of murder in the first degree, without recommendation. On March 16, 1912, judgment of death was pronounced. This is an appeal by defendant from such judgment and from the order denying his motion for a new trial. There is also an appeal from the order denying his motion in arrest of judgment, but no appeal lies from such an order, which is always reviewable on an appeal from the judgment, and there was absolutely no merit in the motion.

It is suggested that the evidence was insufficient to support the verdict. The evidence was such as to force the conclusion that the deceased, who was a salesman for a jewelry company, was murdered in the basement of the place of business of the San Francisco Produce Company at the comer of Oregon and Front streets, San Francisco, late in the afternoon of November 18, 1911, and that the murder was committed in the perpetration of or attempt to perpetrate a robbery. Deceased then had in his possession fourteen or fifteen watches, several chains, and some valuable rings, all of which were taken from his body by the person or persons who killed him. The only real question in the case was as to the identity of the murderer or murderers. While the evidence connecting this defendant, who was an employee of the produce company, with the matter was entirely circumstantial, it was of such a character as to leave little, if any, room for doubt in the mind of any one reading the record, as to his guilt. It certainly was amply sufficient to support the verdict of the jury.

The claim most seriously urged by counsel for defendant is that the trial court erred in overruling his objection to the introduction in evidence of a photograph of the right side of the head - and face 'of the deceased, taken by Police Officer[*480] Blum, who had been police photographer for eight years. This photograph was taken on November 21, 1911, a few hours after the body was found. There was evidence sufficient to warrant a conclusion that nothing had been done to the head after the discovery of the body and prior to the taking of the photograph except to wash the blood from the face and out of the hair, and also that the photograph was an exact photograph of the portion shown of the head and face of the deceased as they appeared on November 21, 1911, which was the day upon which the body was discovered, after the blood had been washed from the hair and face. The photograph showed a wound in the neighborhood of the right temple, where there was a fracture of the skull. There were three other fractures of the skull, but this, in the opinion of Dr. Magnus, was the most serious, and undoubtedly sufficient to cause death. The testimony showed that this wound had been made with some blunt instrument, and from the marks on the face apparently with an instrument that had grooves in it which were impressed on the face, leaving the skin, corrugated One object of the prosecution in introducing the photograph was to give to the jury a better idea of the actual appearance of the skin of the face in this regard, it being the theory that the wound was inflicted with a hatchet similar to those used by the employees of the produce company, which had heads grooved in such a way as to be capable of leaving such an impression. We have no doubt that a photograph was admissible for the purpose mentioned, under the general rule that photographs may be used “to exhibit particular locations or objects where it is important that the jury should have a clear idea thereof, and the situation may thus be better indicated than by the testimony of witnesses, or where they will conduce to a better or clearer understanding of such testimony” (State v. Miller, 43 Or. 325, 328, [74 Pac. 659]), and we are satisfied that the preliminary proof was sufficient to warrant the court in admitting in evidence the photograph in question. The action of the trial court in overruling the objection to the photograph of incompetency, irrelevancy, and immateriality and lack of a proper foundation cannot therefore be held to have been erroneous. Some complaint is made in the closing brief of defendant and in the oral argument that an improper use was made of this photograph by the dis[*481] triet attorney in his argument, by calling attention to the fact-that the head of defendant’s hatchet, which it was claimed was larger than those used by other employees of the produce company, “fits to a nicety” the impressions found on the face of deceased as shown by the photograph. Without discussing the merits of defendant’s objection to this line of argument, it is sufficient to say that no objection whatever was made by him thereto at the trial.

Complaint is made that the trial court erred in denying a motion of counsel for defendant for a continuance when the case was called for trial on March 1, 1912. But it appears that the court did subsequently postpone the commencement of the trial to March 4,1912, and that when the ease was called on the day last mentioned no request for a further continuance was made and defendant through his counsel answered ‘ ‘ ready for trial. ’ ’ The motion for a continuance on March 1st was based on the claim that defendant had not been able to malee necessary preparations to proceed with the trial because the shorthand reporter officiating at the preliminary examination had not filed his longhand transcript of the proceedings at such examination with the county clerk. No objection on that score being made when the case was called on March 4th, and defendant expressing his readiness to then proceed with the trial, presumably the transcript had been filed and defendant was, as he said, ready for trial.

Complaint is made that the trial court refused to exclude the witnesses fo.r the people from the courtroom "during the taking of testimony. This, of course, is a matter largely within the discretion of the trial court. We find no error in the action of the court in this regard. . The record shows that what defendant specially desired and asked for was that all the police officers except the one actually being examined should be excluded,, and the court ruled that it would “exclude the police officers not on the witness stand during the time the testimony of the other police officers is being taken.”

At a certain stage in the cross-examination of one of the police officers,- the court remarked as to a .question asked by counsel: “I do not think this is material at all,” and directed counsel to desist from that line of questions. No claim is made that the matter as to which the question was asked was at all important, or that the. court erred in refusing• to.allow:[*482] further questions on that line to he put, and there is nothing in the record to warrant any such claim. The point appears to be that the language of the court was such as to injure defendant’s cause with the jury, but we can see no force in any such claim.

The briefs do not specify any instance wherein the testimony of admissions made by the defendant to police officers was improperly admitted on the trial, but simply states generally that such admissions were made under such circumstances as to require their exclusion. We have carefully examined the record in this regard and find no foundation for the claim.

In his argument to the jury the assistant district attorney after saying that the defendant was missing at the store from 4:30 p. m. to 5:50 p. m. on November 18th, said: “What was he doing at that time ? Where was he ? The greater portion of that time he was in the basement of the San Francisco Produce Company, murdering young Goodman and taking from his possession the jewelry.” Defendant’s counsel excepted to these remarks and assigned them as misconduct, saying there was nothing in the evidence to warrant the statement. As substantially suggested by the trial court in response to the objection and exception, the assistant district attorney was apparently stating, not some fact of which he pretended to have any knowledge outside of the evidence given on the trial, but his deduction or conclusion from the evidence so giten. The statement was entirely within the domain of legitimate argument.

The effect of the instructions given to the jury was to confine the jury to one of three verdicts, viz.: murder in the first degree, murder in the first degree with the penalty of life imprisonment, and not guilty. The jury were not instructed that they might find a verdict of murder in the second degree or one of manslaughter. In this action of the trial court there was no error. The evidence was such that the defendant was necessarily either guilty of murder in the first degree or not guilty at all. Section 189 of the Penal Code provides that “all murder . . . which is committed in the perpetration or attempt to perpetrate . . . robbery ... is murder of the first degree.” It is thoroughly established in this sMe that it is proper tó refuse to instruct -a jury as to[*483] a lesser offense or degree included within the offense charged, where the evidence is of such a nature as to warrant, in the event that the defendant is guilty at all, only a verdict for the higher offense or degree. (See People v. Swist, 136 Cal. 520, [69 Pac. 223]; People v. Keith, 141 Cal. 689, [75 Pac. 304]; People v. Lopez, 135 Cal. 23, [66 Pac. 965]; People v. Chaves, 122 Cal. 140, [54 Pac. 596]; People v. Chaves, 103 Cal. 407, [37 Pac. 389]; People v. Lee Gam, 69 Cal. 552, [11 Pac. 183]; People v. Turley, 50 Cal. 469.) This rule is clearly applicable in a case like this, where the murder was committed in the perpetration or attempt to perpetrate the crime of robbery, and the statute in terms makes such a killing murder of the first degree.

The court instructed the jury as follows:—

‘‘ The court instructs you that if the jury in this case should find the defendant, John S. Rogers, guilty of murder in the first degree and they also shall find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant, John S. Rogers, from the extreme penalty of the law. The Penal Code invests a jury in a criminal case for murder with the discretion, but the discretion is not an arbitrary one, and is limited to determining which of two punishments shall be inflicted, and is to be employed only when-the jury is satisfied that the lighter penalty should be imposed. If the evidence shows the defendant to be guilty of murder in the first degree, but does not show, some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree, and leave with the law the responsibility of affixing the punishment. ’ ’

Section 190 of the Penal Code has provided ever since 1874 that “Every person guilty 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.” It is substantially urged that the discretion of the jury here referred to is one to be exercised without any instruction, from the court as to the grounds or reasons for the mode in which they shall exercise it. As was said in People v. Bawden, 90 Cal. 195, [27 Pac. 204], if the question here presented were a new one, there would be strong reasons for holding in accord with defendant’s "claim. In that case' a similar instruction was given to[*484] the jury, and this court upheld the action of the trial court in view of previous decisions on the same question. People v. Brick, 68 Cal. 190, [8 Pac. 858], was one of these decisions, and in that ease the instruction approved was word for word the instruction here given. (See, also, People v. Jones, 63 Cal. 168; People v. Murback, 64 Cal. 369, [30 Pac. 608]; People v. Olsen, 80 Cal. 122, 128, [22 Pac. 125].) The law of this state thus appears to be thoroughly settled to the effect that the instruction in question is not erroneous.

. The court failed to instruct the jury as to what constituted robbery or attempted robbery, and also that the neglect of defendant (who did not take the stand as a witness) to be a witness cannot in any manner prejudice him or be used against him on the trial or proceeding. (Pen. Code, sec. 1323.), No request for an instruction as to either of these matters was made by defendant. So far as the failure to instruct as to what constituted robbery or attempted robbery is concerned, we are quite satisfied that the general rule obtains to the effect that where a party in a criminal case fails to ask the court to give instructions to the jury upon, a particular point, he cannot complain of error on the part of the court in not giving the instructions. (See People v. Gray, 66 Cal. 271, [5 Pac. 240] ; People v. Christensen, 85 Cal. 568, 571, [24 Pac. 888] ; People v. Ahern, 93 Cal. 518, [29 Pac. 49].) Nor can we see how any possible prejudice could have resulted to defendant because of the absence of an instruction on that point. The same rule has been applied by this court where, under the same circumstances that existed here, the trial court neglected to instruct the jury in reference to the failure of the defendant to take the stand as a witness in his own behalf. The court said that in the absence of a request for such an instruction, defendant could not be heard to complain (People v. Flynn, 73 Cal. 511, [15 Pac. 102].) This appears to be the conclusion reached in other states where the question has' been presented, except in Washington, where a statute in terms provided that “it shall be the duty of the court to instruct the jury that no inference of guilt shall arise against the accused if he fail or refuse to testify as a witness in his own behalf.” (See State v. Myers, 8 Wash. 183, [35 Pac. 582].) We have no statute here that specifically requires any instruction on this subject. No reason appears why- the decision in[*485] People v. Flynn, 73 Cal. 511, [15 Pac. 102], on this point is not correct, and we adhere to the views there expressed.

No other point is made for reversal and after a careful consideration of the whole record we fail to find any substantial error in the proceedings.

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

Shaw, J., Sloss, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred.