By the Court, Wallace, C. J.:
The verdict was as follows: “We, the jury, in the case of The People of the State of California v. Charles Perdue, do find a verdict of manslaughter. By the foreman,
“Wm. A. Creps.”
That this verdict as recorded, is not exactly in the form prescribed by the statute is true. It might have been, had any attention been given to the provisions of the Penal Code. So long as in trial Courts, each jury is permitted to follow its own views as to the mere form of the verdict, controversies of a more or less serious character as to its formal sufficiency must continue to arise.
We think, however, that the verdict in this case is sufficient, within the rule announced in People v. McCarty, 48 Cal. 557" court="Cal." date_filed="1874-07-01" href="https://app.midpage.ai/document/people-v-mccarty-5438420?utm_source=webapp" opinion_id="5438420">48 Cal. 557, and that its import is that the defendant, Perdue, (and not the foreman of the jury), is guilty of the crime of manslaughter as charged in the indictment.
2. The application to remove the cause on the ground that a fair arid impartial trial could not be had in the county of Tuba, was one addressed to the sound discretion of the Court below, (18 Cal. 180" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/people-v-mahoney-5434707?utm_source=webapp" opinion_id="5434707">18 Cal. 180,) and upon the circumstance appearing, we think that it was correctly denied.
3. The homicide in question was effected by a kick or kicks inflicted by the prisoner upon the back of the deceased, breaking his back-bone, and causing a general paralysis, resulting in death in about one week afterwards. The argument made for the prisoner is that the evidence is not sufficient to support the verdict of manslaughter. A motion for a new trial made below upon this ground was refused. The bill of exceptions appearing in the record shows that a part of the evidence given for the people consisted of the dying declaration of the deceased, which had *428been reduced to writing in his presence, and was read to the jury at the trial. But we have been unable to find this declaration in the record, and we are, therefore, not possessed of all the facts which were relied upon by the prosecution. This declaration may have formed a very important element, for aught that we can see, in the case made at the trial. But irrespective of this consideration we are unable to arrive at the conclusion from that portion of the case found in the record, that in point of law the charge of manslaughter was not made out. The homicide, even if it be assumed to have been committed upon sudden combat, is not excusable, if undue advantage was taken of the deceased. (Penal Code, Sec. 195.) There was evidence given by the prosecution tending to prove that an undue advantage was taken of the deceased by the prisoner, within the meaning of the statute referred to. The parties had been engaged in a mutual struggle — had fallen together upon the floor, and had risen together, still struggling. They went down a second time, and in endeavoring to rise again, the prisoner, who had the benefit of the support afforded by the wall, had succeeded in giving the deceased a severe kick in the back with the heel of his boot. At this point the deceased cried out that he had had enough, and in fact, ceased to make further resistance. The prisoner had disengaged himself from the deceased, and had partially turned away from him, leaving him lying upon the floor, partially upon his side, with the surface of his back exposed. Under these circumstances, at the instance of one Spear, who cried out, “kill the d—d son of a b—h! he hain’t got enough yet,” the prisoner renewed the assault upon the deceased, and several times kicked him severely in the back, and continued to kick him after some of the by-standers had cried out to the prisoner, “stop, now; he has hallooed enough; let him alone.” The evidence is fairly in conflict, as to whether the mortal blow was the result of the kick given in the second fall of the parties, or was inflicted in the renewed assault made by the prisoner at the instance of Spear, after the deceased had been left lying helpless on the floor. If the jury were of the latter *429opinion, the verdict of manslaughter was not only well supported by the evidence, but was rather favorable to the prisoner. In any view, there is nothing in the facts of the case, as appearing in the record, which would warrant an interference by us with the judgment rendered below.
Judgment and order denying a new trial affirmed. Remittitur forthwith.