Under plea of guilty to information charging murder in first degree where evidence shows clearly guilt as charged, if it is error to instruct the jury as to the degree of murder, it is not reversible error. State v. Best, supra; State v. Ross, 16 Wyo. 285; Reppin v. State (Colo.) 34 P.2d 71; Garcia v. State (Tex.) 237 S.W. 279; State v. Fitzgerald, 330 Mo. 407, 32 S.E. 1113; State v. Quinn, 56 Wn. 295, 105 P. 818; Brashear v. Commonwealth, 275 Ky. 356; 121 S.W.2d 718; People v. Hoyt, 110 U.S. 574, 4 Sup. Ct. 202, 28 L.Ed. 262; State v. Smith, 221 N.C. 278, 20 S.E.2d 313; Smith v. Roach, 56 Wyo. 205; Trammel v. State, (Ark.) 97 S.W.2d 902. Where a plea of guilty is accepted to information charging murder in the first degree, it is proper for the state to introduce evidence to show the circumstances of the crime, and no prejudicial error resulted in the submission thereof, or the acceptance of the evidence offered in this case.
nd a reasonable doubt that at the time of the killing he was actually perpetrating or attempting to perpetrate a robbery; that if they failed to find that the killing occurred during the perpetration or attempted perpetration of a robbery, it would, if with malice aforethought, be one of second degree murder, or that if the killing occurred as the result of the involuntary firing of the gun by the defendant or as the result of his negligent and careless use of the gun, it would be manslaughter. Counsel argue that under the indictment the jury could only convict of first degree murder or acquit, that the instruction as to second degree murder and manslaughter was confusing, and that it opened up a matter not properly for the jury's consideration. It is enough to say as to this that the particular instruction was requested by counsel for appellant and, if it is subject to criticism, which we are far from saying it is not, it was wholly favorable to the defendant, and he cannot complain. Brashear v. Commonwealth, 275 Ky. 356, 121 S.W.2d 718. See Sparf and Hansen v. United States, 156 U.S. 51, 60-63, 15 S.Ct. 273, 39 L.Ed. 343; People v. Schleiman, 197 N.Y. 383, 90 N.E. 950, 27 L.R.A., N.S., 1075, 18 Ann.Cas. 588; People v. Sanchez, 24 Cal. 17; People v. Smith, supra.
The evidence was amply sufficient to sustain the conviction. Alsbrook v. Commonwealth, 243 Ky. 814, 50 S.W.2d 22; Commonwealth v. Compton, 259 Ky. 565, 82 S.W.2d 813; Brashear v. Commonwealth, 275 Ky. 356, 121 S.W.2d 718; Chapman v. Commonwealth, 294 Ky. 631, 172 S.W.2d 228. We are of opinion, however, that it was prejudicial error not to have given instructions affirmatively submitting the respective claims of defense.