This is аn appeal from a final order of distribution of the estate of Patrick Kirby, deceased.
*92 Patrick Kirby died intestate on January 18, 1910, leaving neither wife, issue, father nor mother surviving. His surviving heirs, according to section 1386 of the Civil Codе, were two brothers, Michael and James Kirby, one sister, Bridget Mannion, and the children of Ellen Daly, a deceаsed sister. On December 1, 1910, Michael Kirby transferred his interest in Patrick’s estate to one James Kirby, a son of said Miсhael. Said James Kirby is the appellant herein. On February 23, 1910, Michael Kirby was duly charged by information, in the superior court of the city and county of San Francisco, with the murder of said Patrick Kirby. On July 1, 1910, he was, upon said charge, сonvicted of the crime of manslaughter. An appeal was taken from the judgment of conviction and it has been affirmed and has become fina]. Because of this conviction, the court below refused to distributе the share of Michael Kirby to his assignee, James Kirby, and distributed the entire estate to the other persons аbove mentioned. It is claimed that this was error.
By section 1386, if a person dies intestate, leaving neithér issue, husband nor wife, father nor mother surviving, his estate goes to his brothers and sisters, and to the children or grandchildren of any deсeased brother or sister by right of representation. An exception to this rule is declared by section 1409, а new section added to the same title in 1905. It is as follows:—
“No person who has been convicted of the murdеr of the decedent shall be entitled to succeed to any portion of his estate; but the portion thеreof to which he would otherwise be entitled to succeed descends to the other persons entitlеd thereto under the provisions of this title.”
If Michael Kirby was not “convicted of the murder” of Patrick Kirby, within the meaning оf this section, then James Kirby, the assignee of Michael, is entitled to succeed to one fourth of the estate. What, then, is the true meaning of the words last quoted?
“Words and phrases are construed according to thе context and approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition.” (Civ. Code, sec. 13.)
*93 The word “murder” is a technical word. It not only has acquired a рeculiar and appropriate meaning in the law of this state, and in the law generally, but it has been prеcisely defined by our statute. The Penal Code defines it as follows: “Murder is the unlawful killing of a human being, with malice aforethought.” (See. 187.) It is divided into two degrees, the first degree including all premeditated, willful and deliberate murders, and аll killing done in the perpetration or attempt to perpetrate certain lesser crimes, the second including all other kinds of murder. (See. 189.) Murder of the first degree is punishable by death or imprisonment for life; murder of the second degree by imprisonment not less than ten years. In ordinary usage and at common law the word hаs the same meaning. (Webster’s Die.; 1 Wharton on Criminal Law, sec. 303.)
The word “manslaughter,” ‘whether in common usage, at сommon law, or by our statute, has a very different meaning. The Penal Code, (section 192,) defines it as “the unlawful killing of а human being, without malice,” and declares it to be of two kinds: 1. “Voluntary—upon a sudden quarrel or heat of passion”; 2. “Involuntary—in the commission of an unlawful act not amounting to felony; or in the commission of a lawful act, which might produce death, in an unlawful manner, or without due caution and circumspection.” The meaning at common law and in ordinary usage is substantially the same. (See Webster’s Die.; 1. Wharton on Criminal Law, secs. 304, 305.) It will be noted that it excludes the element of deliberation and premeditation.
With relation to each other, the provisions of the four Codes must be construed as though they were all parts of the same statute. (Pol. Code, see. 4480.) Prom these rules and definitions' the conclusion necessarily follows that a conviction of manslaughter is nоt a conviction of murder. It is a conviction of a different offense, an offense which does not includе all the criminal elements of the crime of murder. The distinction has indeed been carried so far that it is well sеttled that a conviction of manslaughter upon a charge of murder, is, in legal effect, an acquittal of the murder charge.
(People
v.
Gilmore,
The order is reversed.
Sloss, J., and Angellotti, J., concurred.