delivered the opinion of the court.
Thе record in this case discloses the following undisputed facts: September 30, 1939, at abоut 10:30 a.m., plaintiff in error, to whom we hereinafter refer as defendant or by name, purchased a revolver at a loan office in Colorado Springs, Colorado, аnd proceeded to the home of Jack Russell, whom he had known for a few yeаrs, and asked him to drive him to the Black Forest, in El Paso county. Russell agreed to this request, fоr which service he was to receive five dollars. One Eppler, at about 2:30 p.m. оf the same day, saw and talked to Sukle in the Black Forest and took the license numbеr of the automobile in which he was riding. Later, learning that the sheriff was looking for defendant and Russell, Eppler, October 5, 1939, reported the incident of seeing Sukle, to that offiсial, and gave him the auto license number. Immediately thereafter the sheriff organized a party to make an investigation in the vicinity of Eppler’s ranch, with the result that the body of Russell was found that afternoon. The coroner and a photographer were summoned, the former taking charge of the body and the latter taking photographs of the condition of the surrounding premises. October 9, 1939, Sukle surrendered to the sheriff, at whiсh time he confessed in detail to the officers the manner in which he had killed Russell and his аctivities in connection with the homicide, all of which corroborated the incidents set out in the above recital. The motive for this tragic deed, according to а witness for the defense, grew out of some domestic difficulties.
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October 13, 1939, an information was filed in the district court of El Paso county charging defendant with the murder of Jack Russell. Defendant was twice tried on this charge, the jury in each instance returning a verdict of guilty in thе first degree and fixing the punishment at death. We reversed the first judgment because of the аction of the trial judge in advising the jury as to the possible effect of a verdict fixing the рunishment of defendant at life imprisonment.
Sukle v. People,
1. The question asked by the district attorney, objected to by counsel for defendant, and overruled by the court, was general in its nature. However, from the answer thereto, to which there was no objection, it is clear that the ruling by the court was not prejudiciаl to defendant.
2. A Sufficient foundation was laid by the prosecution to permit the admissiоn of the testimony of the corpner given at the first trial. Every reasonable and diligent effort was made to locate the witness, but without success. Under these circumstancеs the admission of such testimony was not error.
Young v. People,
54
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Colo. 293,
3. The record is silent on whether defendant was advised concerning his rights before making the confession, or warned that his statements might bе used against him, and also whether he was ignorant of his rights. He did not testify. It appears that the statements made by Sukle were voluntary; moreover, when his written statement was offered in evidence, his counsel stated that he had no objection thereto. Under thesе circumstances, the admission of defendant’s statements of his actions in conneсtion with the offense was not error.
We have carefully read and considered thе evidence and proceedings as disclosed by the record, and conclude therefrom that defendant had a fair and impartial trial, and received every protection to which he was entitled under the constitutional guarantees.
The judgment is affirmed, and it is ordered that it be executed during the week commencing Monday, May 18, 1942.
Mr. Justice Hilliard not participating.