*1 licens- purporting to establish standards which arbitrarily ing are, enacted, prohibitive act, board shall rights”; petitioner’s constitutionally guaranteed of certain in the in agreement and I am further that is said with much how- opinion support may implied, If it of the conclusion. points consid- ever, from the extended discussion the several obstacles, in the opinion, ered that there are constitutional otherwise, any regulation every form of reasonable municipal occupation petitioner authorities of which engaged, prepared join any portions I am not opinion may carry implication.

Edmonds, J., Shenk, J., concurred. Apr. No. 4601. In Bank.

[ Crim. 1946.] THE PEOPLE, Respondent, VALENTINE, v. JOHN

Appellant. *4 Court of Denton, Jr., Appellant District Marshall for Supreme Appeal Clyde Appellant C. Shoemaker for Court. Richards, Attorney General,

Robert W. Frank Kenny, Deputy Attorney General, for Respondent. charge

SCHAUBR, J.Defendant been tried on has Raymon Boyd. murdering guilty A him of mur found impris degree penalty der- of the first and fixed the at life onment. appeals judgment He from the of conviction and Defendant an denying from order his motion for new trial. contends, agree contentions, and we with his that the instruc relating degrees tions to the differences between the of mur der and the provocation definition effect sudden passion upon degree preju or class of the homicide were dicially urges erroneous. Defendant the evi further dence is finding insufficient support that the homicide was murder degree of the first that, since the errors only degree instructions relate to the and class of the of fense, we should power (Pen. Code, 1181, par. exercise our 6) modify judgment. Although it is doubtful whether (hereinafter summarized) evidence could sustain verdict of murder of degree, unnecessary the first it is us to deter mine point. amply The evidence is sufficient to sustain a verdict of either degree voluntary murder of the second manslaughter. In that say condition of the record we cannot that as a matter of law it establishes either murder of the second or manslaughter to the exclusion of other. Therefore, a necessary. new trial is Defendant John Valentine wife, and his at the time of years and for prior about killing, two to the lived in house at the rear of No. 3715 Street, Angeles. Wall Los Three other adults, members of family, resided with them. The de- fendant steadily employed Goodyear at Tire & Rubber Company and went to his work early morning. in At the front of the lot was a two-family house, one side of which was occupied by deceased and his wife at the time of and for about five prior months killing. Boyd and Valentine families acquainted were not with each other. Defendant spoke deceased to one another for the approxi- first time mately one-half hour before defendant shot deceased. *5 (daylight saving about 6:15 daylight,

Before at o’clock time) morning 18, 1943, on of November defendant left get go In home to to work. order to to the street from his necessary use cement defendant’s house it was walk which up around house at the front of the led to and lot. The walk Boyd under the bathroom window of the resi- turned inches of this was six feet four dence. The lower window sill tall; walk. six feet above the Defendant five inches eyes ground. are six feet one inch above the After defen- reached the turn dant left his house and before he Boyd Boyd walk him spoke to from the bathroom window. effect, being trespasser defendant, accused and be- ing purpose peering for the into the window. De- there trespasser, fendant denied that he was denied he had explained into the window and that he lived looked argument An way rear and on his to work. and house was quarrel developed quickly tragic culminated homicide. testimony Boyd,

According to Mrs. widow of dece- killing dent, were as Her the circumstances follows: yet dressed, awakened her husband, who had not and told through her that spoken he had to someone bathroom Boyd window. then went to the front of the house and looked living Boyd windows. After out the room about five minutes bedroom, spent fifteen to the about minutes dress- returned ing, talking door. him then went out the front She heard Boyd called to her and she went someone. onto Boyd man porch. front and a whom she later learned was yard; standing in the front “both were talk- Valentine ing only part time” at the same and she could understand “My him what was said. husband asked what he doing house”; around the back of the she did not understand reply. Boyd Valentine’s Valentine continued and to talk say and “I Mr. Valentine to that he lived understood go the back if he around the back he would and would show put Boyd house, Mrs. her him he lived.” went into where porch. Boyd on her shoes, and returned to the front there, through Valentine were not so she went her house eight porch. people and onto the back About six or were in demonstrating yard Boyd people, the back “was Valentine, spoke to Mrs. what Mr. Valentine did when he there, my him . ran rather . . walks back or back husband against house], spread rear his hands out [to the wall against (illustrating), up leaned wall like this way position showing He said he was like that. ... and he spoke him he had Valentine was in after Mr. porch on the back Then woman came out ran. . . . some my must that he husband that little house . . . and she told he lived her husband and man was mistaken, that my wrong man, husband there, so and that he must have you it was said, ‘Well, said-turned to Mrs. Valentine my [sic], ‘Yes.’ Then said, it?’ Mrs. Valentine wasn't *6 away proceeded passed him him husband to walk from and it,’ said, forget and Mr. Valentine came K., ‘O. and then said, way you him ‘I behind didn’t like the talked to and you.’ my husband morning me this and I could So have shot said, ‘Well, why turned and— slightly him turned to and you don’t in his shoot me?’ . . . had both of his hands He I pockets, time did, continually Mr. Valentine . . . gun first saw him he pulled pocket.” until this out his right pocket, Defendant took a revolver “out of his and took his left fooling gun, hand and fooled with—was with the was doing something I it, what, minute, to don’t know for a they and talking were both time, at same I and couldn’t saying.” understand what either one was She further testi- fied that Boyd standing defendant and were then “6 about or 8 apart; feet” Boyd’s that hands were “down his side”; addressing that by Boyd no profanity was used the defendant and “I said, ‘Oh, Mister, please don’t him,’ shoot and I again, said it and he him shot . . . [T]he spun shot him around, and fell on Boyd he his back.” Mrs. “ran in the immediately house and called the ambulance and police, and when I everybody came back gone.” had

Officer Hoffman testified that 7:05 at about a. m. on No- 18, 1943, vember he received a call police over his ear radio go to 3715 Wall Street. Two three minutes later he and a fellow officer arrived at the Wall They Street address. went to the rear of the property and the defendant advanced to meet them. “I asked the defendant happened; what well, he said that had he trouble and shot a I asked man.'... gun defendant where the used, was that he had and he pulled back coat, his coat, and, left side of his I re- call, gun sticking gun was his belt . . . The had sis ‘ loaded said, bullets in it I ... you Where is the shell that fired?’ said, He ‘I gun reloaded the and the shell is in ’ got house. And we went the house and shell out wastepaper basket.” Defendant taken to the Uni- was following

versity gave Police Station he statement: where morning work; dark, I out I “This started it was and you somebody say, ‘Hey, going?’ heard I looked where around lighted cigarette and I through could see a the window. my Then he asked me I and I who was told him name is John Valentine, my way and I I to work. Then asked on was, his name he Then he said him what but didn’t tell me. you me, ‘Do I I’d yes, live back here?’ and said been liv- ’’ ing years. returned back here . . . two Defendant almost gun my cigarettes got his house “For . . . after Boyd spoken I had the window and didn’t me out of know got who he was.” I “When around to the front the man I Boyd stopped know now as came out the front door and me again. again doing I I He asked me what was here and said I live back here. Then he went to the door called his Boyd wife out she When she came out. she came out told that wasn’t Then I the fellow. walked around to the Boyd Then called back where I he show lived. him again again, his ‘Honey, wife and when came she out she said fellow, wrong that’s not that’s the fellow.’ Then he you said, you ‘I morning saw ran up around here ’ no, I I only ducked behind the him . bushes. told . . here, live I I ducking wasn’t behind him the bushes. told again I Boyd said, lived here and ‘I’ll about that.’ see pockets, He had his come both hands he started to *7 ’’ I towards me and him. shot Defendant further stated that shot, Boyd attempted before him he to strike or detain and “I way”; Boyd back ducked out of that was “six or his eight away” feet when defendant fired. Defendant was then asked, you Boyd you “At the time think shot didn’t that your you?” was in danger, “No, life and replied, did only when thing, me, riding he he talked to he acted like was over question, me and it made me To “You hot.” could gone have stopped you on to work not and if hadn’t wanted account “Well, to?” defendant more on answered, it was making him me than because he said that I hot of what ’’ stopped. testimony

The is When defendant as follows: he left go morning 18,' his house to work on the of November “I ’’ only got had steps about four out of the house when a loud something voice said which the not defendant did understand. “I and stood looked . . anyone, but couldn’t see . then . . . I whether cigarette I . .. couldn’t tell seen reflection of a and said, voice ‘Who inside, and this the outside or it was on your . you? you . . What is doing back there? What are said, you going?’ ‘My name? I name is John ... Where are ’ He my way I work. Valentine, fellow; here; I live am on I ... that time said . . . are a liar.’ At ‘You God damned you.’ I . . . said, here, I ‘I told still didn’t see him ... live not here. said, liar, you do live He ‘You are a God damned ’ He . . . I will while. You wait there. find out in a little ’ my ? you looking said, doing, up here in window ‘What were your I said, looking I . . . How ‘Fellow, wasn’t window. your standing I look in from I over could window where am here?’ said, there, . . . He I will ‘You wait find out whether ’ you live here or not. . . . I there a little while and felt stood my pocket my cigarettes for they my pocket, and wasn’t house, my so I I picked up went on back in and when your you get cigarettes something me, ‘Why said to don’t gun? just don’t I picked You know there.' So who out gun I up stuck in my and it belt and walked on out. come anyone out there I I and didn’t see ... walks on around the house . . public, and . out the sidewalk . . . and got when I ‘scrub,’ there . . . . there was some . . and this appeared man right stepped behind this ‘scrubs’ and in front of said, ‘Fellow, you me . . . I . . . the fellow stopped morning, you?’ ‘Yes. said, me wasn’t He . . ‘Nothing. . What about it?’ and I said, he started at me. ’ just I you want to tell I here, up, I live and backed on show- ing him I just where lived. I backing ... talk- continued ing to him. said, . . . He ‘I I knowed damned God well going get even you, going with I I catch and knowed was ” you.’ up Boyd with Boyd house, two went around the continued accusations and defendant continued his denials explanations urged they “try get along each other ... I they don’t like trouble.” After reached yard Boyd’s Boyd between and Valentine’s “yelled houses his wife and she ran out... and that is the first time I ever seen the lady, said, ‘No, she honey, wrong that is the man.' . .. pushed And he still on toward time, me and at ’ I after, little holler, heard another voice ‘What is matter? I said, man . ‘This .. don’t let get go want to me out of here to to work. ’. .. He cursing continued me shoving me around and shoving around, said, me and I ‘Fellow, *8 listen, stop . . . shoving me like Man, that. . . I am late for I work. don’t like ” By

trouble.’ time the members defendant’s house- sister-in-law, Higgins, hold had come out. Mrs. defendant’s Boyd’s Boyd wrong “had and told man.” wife that he “ Boyd ‘Honey, Mrs. man said, . . . leave the alone.’ He speaking alone, thought I he leave me and while was didn’t again them I get by, pass I went him and he to could to going shoved I me was me ... ducked like he to strike back ‘Listen, ducking I I him. ... been and I said, have don’t ’ ‘ ’ you.. Shoot, want to . says, shoot . Please leave alone. He me pockets swung and ... he had his hands his he right out, had, when hand came out with whatever he up, I had been backing swung . . . he if had but when he just something pocket, in his hand which he in his I had ... ’’ pulled gun my pocket out of him. and shot On cross-examination defendant testified he had gun. never a before fired He further testified that when Boyd spoke first him “I to was afraid of the at that voice particular morning” time of the thereafter, when they way yard, Boyd met in the was he afraid of and “the approached he just figured doing Ime, something he he was to; right explaining didn’t have . no and after me to him . . explaining I was him all of time.” Mrs. Mrs. Valentine, Higgins, Edmond, and Mr. also member of household, defendant’s came out of their house they when They Boyd heard the altercation. testified that repeatedly window, peeking accused defendant of his cursed him hap- and stated that “That is not the first time that has pened. I going knew I catch him and break his God Boyd, damned neck.” attempted pass When defendant saying, work,” “Mister, get way go out of and let me Boyd said, hurry,” shoved “Don’t be such a damned God defendant, put right pocket. Boyd in his hand there- going after started if he were shove toward defendant as again him said, step, and defendant “Don’t come another Boyd else I replied, will shoot.” can’t scare “You me with your gun,” on, God came damned and defendant fired.

In three respects given essential and fatal the instructions in this case condemned resemble instructions (1) v. Thomas Cal.2d P.2d : 7] specific kill were told existence intent (which, manslaughter course, voluntary exists in types second de- murder as well as some first gree murder) de- murder of constitutes homicide the first

131 reducing passion as (2) provocation, the effect of gree; manslaughter was of from murder to the class a homicide passion pos- emphasized provocation and the effect of a sibly precluding making the formation of delib- doubtful (3) ignored; was the premeditated erate and intent kill to jury effect, proving circum- told, in the burden of were the from murder of mitigate the would offense stances which degree upon defendant. first murder the the to second un “If the jury erroneously instructed that The pas and sudden provocation the killing lawful is done without manslaughter, is in done the sion which reduces offense consequences act, an the natural commission of unlawful attempt committed dangerous life, are or is of which in the felony other than those mentioned perpetrate degree, or the circumstances description of murder the first this heart, an is murder killing show abandoned existence degree, proves the evidence second unless such slayer specific intent to take mind of the life. If killing the at the specific intent exists time unlawful de be murder would course committed first offense added.) instruction, under facts gree.” (Italics Such statutory be difference case, completely eliminated the degree the first and murder of the second murder of tween jury, they the homicide required the if found degree and all, degree. murder of first to find it to be at be murder 17, 189; (1864), 24 Code, People v. Cal. (See Pen. Sanches 59, ; 90-91 (1944), 25 P.2d 28; People v. Holt Cal.2d [153 21] (1945), supra, 880, 902; People 25 Cal.2d People v. Thomas 8].) P.2d Some (1945), 164, 27 178 v. Bender Cal.2d may degrees murder well also confusion as to further that, provoca where the instruction been contributed have manslaughter killing to adequate reduce an intentional tion exists, kill it not that shown, “although the is intent element an essential intent and malicious deliberate added.) language of (Italics The of murder.” in the crime People v. Freel that of quoted instruction is the last (1914), Elmore Cal. 436, 437, quoted Cal. man differentiating it is incorrect 989], P. but 210 [138 of deliberate intent from on the basis slaughter murder an element of intent is essential declaring that deliberate Code, intent, (Pen. under the Deliberate statute murder. murder, 187, 189) an element of as such. is not essential §§ only degree of first of one class It is an essential element degree murder and is not at all an element of second murder. (and were also instructed idea was em phasized repetition) “adequate provo that the existence of killing an cation” reduces intentional from murder to man slaughter. they But were not advised that the existence of provocation “adequate” which is not to reduce the class of may offense nevertheless raise a reasonable that the doubt defendant formed the intent to kill upon, and carried it out after, premeditation. they deliberation and If were not im pliedly precluded considering provo at all the matter of in determining degree they cation of murder were at best materiality infer left to its from instructions that to constitute murder kill first the intent to “must be formed upon pre-existing reflection and not heat of sudden passion preclude sufficient to the idea of deliberation” and *10 implied that malice “is when no provocation considerable (Pen. 188). appears” Code, particularly This omission was when serious considered with the instruction above discussed that the specific intent to kill an constitutes unlawful homicide degree, murder of the first and the instruction hereinafter dis cussed by that “the commission the of homicide the defendant being proved, proving the burden of of mitiga circumstances ’’ tion upon . . . the devolves defendant. Under such instruc jury may the family’s tions have believed defendant’s and his testimony Boyd’s conduct, toas determined that defendant justified Boyd in killing was not in self-defense and that there provocation such as was not would reduce the offense to man by slaughter (both matters covered explicit several instruc tions), thereupon given no further consideration to such testimony. instructed, jury substantially

The were the words of Code, “Upon section 1105 of the Penal that trial for the Murder, the commission of homicide defendant the the being proved, of proving mitiga the burden of circumstances justify it, upon defendant, tion or that or excuse devolves the proof part prosecution the of the unless on tends to show only manslaughter crime committed amounts to or that justifiable defendant was or excusable.” To this instruc incomplete explanation tion and confusing was added the showing “While the burden of the circumstances under which defendant, justified the act excused devolves he only produce as bound under this rule to evidence will guilt jury create the minds of the reasonable doubt charged.” (Italics added.) offense

133 1105 language of section of instructions giving The by the courts in a number of decisions has been countenanced as to jury in the minds But the confusion this state. likely giving of such proof" which is to attend “burden opinion pointed (concurring out an instruction has been (1944), 23 Cal.2d Traynor in People Mr. v. Albertson Justice said, “logic sug- 550, 7]) 587-589 P.2d and it has been [145 merely gests reality rule section declares since such procedure and does relieve the state the burden not beyond a every guilt element of proving each and essential jury, propriety reading it to the even reasonable doubt explanation, (People Thomas proper with a is doubtful." v. (1945), 880, 896.) 25 supra, Cal.2d jury explanation quoted given

The above which was to the jury inadequate. place this case is In the first application not advised that section 1105 “has no whatsoever determining degree murder, if is found the homicide murder, pertinent only to constitute but is . . . in relation determining whether the homicide constitutes murder justifiable manslaughter or is (People excusable." v. (1945), also, supra, pp. Cal.2d; see, Thomas 895-896 of 25 (1930), 322, 333, Howard Cal. P. 1385]; People A.L.R. v. Bender supra, 27 Cal.2d 179; Frieke, Law, pp. 104, 105.) California Criminal The charged offense must have been understood murder of first degree. placed instruction therefore on defendant the raising burden of a reasonable doubt as to (if murder). of murder But, the homicide was shown, place the law does not that burden on a defendant.

In second place explanatory paragraph, by purport- *11 ing to remove the effect of the instruction in the sec- words of tion 1105 far as so “circumstances under which the act is justified concerned, only or excused" emphasizes are the un- explained instruction proving that “the burden of circum- ’’ mitigation stances of .. . devolves the defendant. Once jury the killing justifiable found the was not or excusable explanatory paragraph as phrased had no applica- further tion to their deliberations. Thus a jury, conscientious follow- ing instructions, might believe that defendant’s evidence tending mitigating show circumstances must do more than only raise reasonable not degree doubt as to the (People v. (1945), supra, 896-897) Thomas pp. but also as to the class of the homicide. Other do nothing instructions to correct this.

Particularly explanatory is this because the instruction so guilt of refers to “a reasonable doubt of his the offense charged” added) (italics and the knew that the offense charged prosecution murder to be and was claimed degree. prosecution murder of the first The of the evidence only does not tend “to show the crime committed amounts manslaughter.” statutory presump- The instruction as to tion of (Pen. innocence and the doubt definition of reasonable 1096) Code, confusion, given up which was does not clear only for it states that “in of a case reasonable doubt whether guilt satisfactorily shown, acquittal.” his he is entitled an (Italics added.) mentioned above errors instructions relative to degree of the offense made are even more serious

instructions that appreciable space “There need be no ... time between the intention killing. to kill and . . the act . A may thing man deliberately do a . . . . . . from a moment’s reflection as subject well as after pondering over the for a year” month premeditate, is, and man “can think before doing act, purpose, moment he conceives as if well the act of long'preconcert prepara result tion.” As held in (1945), supra, v. Bender 27 Cal.2d 164, 182-185, whole, combination instructions, taken aas substantially only .difference, type case, deletes the in this between first and second murder.' complains Defendant giving next in of a stock struction that “If engaged performance accused was act, an unlawful and if attempted the deceased in a lawful prevent manner to performance act, such unlawful if, while so endeavoring prevent same, the defen dant anger solely purpose revenge, for the or to carry enable him design, out unlawful so interfered with by said deceased, attacked deadly the latter weapon, with a intending deceased, to kill said did, under such circum stances, carry intention execution, such into the fact that de passion fendant was in a mitigate would not excuse homicide, but the crime committed would in such case be murder in degree. the first It is not less murder because the suddenly act is done after the intent to commit the homicide is formed. It is sufficient that precedes the malicious intention ” and accompanies the act of (Italics added.) homicide. This manifestly instruction erroneous. According to its first sentence, if in a sudden, accused violent quarrel growing *12 by against deceased the commission protests the of out of act, trivial, killed any of however deceased defendant unlawful in the deadly weapon, the would be murder with a homicide made degree. That is law. statement first not the The as manslaughter voluntary the both transgresses rules as to degree as the difference first and second murder. between second and third of this instruction like sentences are manifestly if, they do, they apparently wise erroneous as too They destroy first differ degree statutory refer to murder. the degrees ence in the of murder and authorize conviction first of degree upon proof amounting only murder of facts to second degree (People (1945), supra, murder. 25 Cal.2d Thomas 898; People v. 880, 164, 181, Bender supra, Cal.2d 182.) complains respect

Defendant in another of stock the concerning degrees instructions the of murder. Such instruc following (italicized) tions contain the erroneous statements ‘‘ of There law: are certain hinds which carry murder them premeditation. conclusive evidence . .. These are cases classes: hilling perpetrated by two First. Where the is poison, means etc. Here means used is held to con premeditation. clusive evidence hilling Second. Where the is done perpetration, attempt perpetrate, or one some in the Code, 189], enumerated statute [Pen. felonies here the premeditation. occasion is made conclusive evidence of Where the case either comes within these classes the test question: Is hilling willful, premeditated? deliberate and is answered the statute . . . But there is another and itself. larger much class of cases included the definition of murder degree, equal cruelty first which are of ... In [etc.]. legislature this class the determine, leaves from all them, the evidence degree crime, before prescribes but government for the of their deliberations the same test which has been used itself in determining the other classes, two preconceived to-wit: The deliberate and intent to added.) (Italics hill.” Of killing course fact that a committed in perpetration of, attempt perpetrate, one of the five felonies section 189 enumerated of the Penal conclusive, necessarily Code not any, evidence that such killing was premeditated. deliberate and Even where killing perpetration attempted perpetration of one of the named felonies is accidental, nevertheless, unintended and held v. Lindley (1945), 26 Cal.2d 791 227], guilty “the offender ‘is of murder the first P.2d ’ degree by If evi force of the statute. [Citations.] conclusively murder so dence establishes com *13 mitted, only degree may a of the first then verdict murder properly showing is not be rendered. And even where the conclusive, support if the record affords for the substantial perpe conclusion that one of the enumerated felonies was attempted, killing trated or and the was committed such perpetration attempt, judgment or must be affirmed. ” Law, (See, also, Fricke, California Criminal [Citations.] page 100, cited.) Similarly and eases there the murderer poison may only or who kills torture intend to inflict suffer ing, might support not death. Evidence of the means an used willful, killing deliberate, pre inference that was meditated, jury that killing but where the has found by poison, lying wait, it not their or torture is function to go farther and inferences as to the manner of the forma draw carrying tion of an intention to kill. In a out case question (Pen. Code, 189) which statute answers affirmatively not, willful, is killing “Is the deliberate and premeditated?”; is, killing it “Is the murder of first de Killings by gree?” the means or on the occasions under degree are murders of first discussion because the sub statutory Attempts explain stantive definition the crime. jury statute to in terms of nonexistent “conclusive enlighten presumptions” jury tend confuse than a more to practice stating unfamiliar with the inaccurate rules of law in terms of rules of evidence. substantive agree We cannot defendant’s with further contention killing present errone a case a such as the one it is jury at all a being ous to instruct the as to murder homicide first because of the means or occasion of its instruction, correctly perpetration. worded, prop Such an can erly given illustrating be as character and more heinous typical cruelty Legislature of the forms of murder which the degree, provided opposed has are of the first as those degree. the second jury told, of section 192 of were the words “Manslaughter Code, killing

Penal is the unlawful of a being, malice. It is of Volun human without two kinds: 1. tary—upon quarrel passion. sudden heat of 2. a or Involun tary— They further told that “if the intent [defined].” killing, murder, and the it unlawful, exists will be [to kill] upon passion, or heat though quarrel done sudden even adequate follows provocation. there was unless [There hereinafter adequate provocation, is not statement what ” Although perhaps can he quoted.] the two instructions by lawyers judges, them a back- reconciled who read says, knowledge exactly ground of that neither means what it voluntary being might be told that well confused manslaughter killing upon quarrel an unlawful a sudden killing passion, heat but an unlawful a sudden quarrel or heat of in certain passion except is murder circum- stances, excepted affirmatively not circumstances do adequate merely provocation define but assert that certain acts, conduct and no provoking fact, matter how are not provoking considered law as in effect. adequate

The above mentioned instruction is not what provocation “It reads as follows: is a settled rule in law that provocation by only, opprobrious, neither nor words however contemptuous insulting actions, or gestures an without upon the person, any trespass against goods, assault nor lands *14 are of themselves to reduce offense inten sufficient of an tional deadly weapon homicide awith man murder to They slaughter.” were told (and further this instruction " correct) is that reduce grade To a felonious homicide from the of manslaughter upon ground murder to quarrel sudden or of passion, provocation heat must be such character naturally as would be pas calculated to excite and arouse the . passion sion. . . Heat of is passion defined as a would naturally be aroused in mind of ordinarily an reasonable person given under the circumstances, facts and conse and quently may up no defendant set his own standard conduct justify or excuse himself in fact because his passions aroused, jury unless further the believe that the facts and circumstances were sufficient to passions arouse the ordinarily reasonable man. ’’ urges

Defendant that the instruction as to what is not “adequate provocation” quoted is first above “amounts judicial to legislation engrafted upon provisions of sec tion 192 of Code,” the Penal and is inconsistent with the last (and correct) quoted defining instruction “heat passion.” He points out Penal Code require does not that the quarrel” “sudden be more than verbal or that the “heat of passion” be a particular type roused of conduct, con killing manslaughter a stitute rather than murder. 138

Through industry for the defendant as re of counsel historical outstandingly flected in his excellent briefs the challenged portion provocation instruction basis of 1850 is made clear. The Crimes Punishments Act provided: “In (§23), following principle, common cases a law highly- voluntary manslaughter there must be serious injury upon killing, provoking person inflicted sufficient an passion person, excite an irresistible reasonable attempt person personal in by the killed commit serious (See People person killing.” (1857), on v. Butler 441.) expressed Penal 435, 8 No such limitation in the Cal. 1872, *15 from probably omitted the provision the of code. Such unnecessary ground entirely that was and it upon code of being simply principle a reiteration of law surplusage, by subject.” all text-writers and established settled Logan 1121], 175 Cal. 45 P. People (1917), v. [164 But Hurtado case and to with the re court reverted accord this of the second of of murder judgment conviction versed a language of jury were instructed because It and Punishments Act. was 23 of the Crimes repealed section Cal.), of 175 (pp. said 48-49 “that section ceased to be In by failure re-enact it the Penal Code t [citation]. present jurors say law condition our it is to the left or not the facts and are whether circumstances evidence did, lead them to sufficient to believe the defendant or to create a doubt in their minds or reasonable as whether not did, jury he passion. commit his offense under a heat of by is further be and admonished advised the court this naturally passion passion heat of must be such as would be ordinarily in the of an person aroused mind under reasonable given circumstances, that, facts consequently, no may up justify defendant set own standard conduct and or aroused, excuse himself his passions because fact jury further unless that the believe facts circumstances passions were sufficient to ordinarily arouse the reason Thus, extremely able man. no man passion violent could justify so or exciting excuse himself if not cause ade be excessively quate, cowardly nor could an justify man himself unless the circumstances as were such to arouse the fears of ordinarily courageous further, man. Still while the con duct of the defendant is to be measured ordi narily reasonable man placed in identical circumstances, the properly be told exciting that the cause must be such naturally would as tend to the passion arouse the ordi narily passion reasonable man. But as to the nature itself, our law leaves jury, that to the under proper these admonitions the court. For the fundamental of the in from quiry is whether not the was, defendant’s reason at the act, time of his so disturbed passion—not obscured some necessarily course, never, fear and passion revenge— for to such an ordinary extent would render men average disposition rashly liable act due without deliberation reflection, from this passion than judg rather added.) (Italics ment.” The foregoing quotation is a clear Nevertheless, correct statement of the law. pointed it is us, out to 1917 on since this court has at least two occasions ignored (1917) the Logan case and followed Bruggy (1892) (See People (1937), case. 594, Manzo Cal.2d 119]; P.2d v. French 12 Cal.2d [72 1014].) P.2d naturally expected As could (and emphasizing the neces- sity confusion) purging our case law the the two extant directly conflicting lines of authorities in this on court *16 produced replicas their in law have question (cid:127)tant People Appeal. v. visions of the District Courts See People Cal.App. 768, 566], 771 P. (1912), Chutuk 18 [124 1061], P. 442, 448 on one (1926), Cal.App. v. 78 Jackson [248 by People (1923), v. 63 question, opposed side of the Golsh 456], 614 P. Davis Cal.App. 609, [219 Cal.App. 715], 94 on the other side. The 192, 198 P. case (1912) case, Bruggy in accord with the but Ghutuk (1883) authority, ignored without citation Hurtado in charge adequate provoca error” “that ease and “saw no a produced by opprobrious, contemptuous actions or tion is not upon person, trespass an or gestures assault without goods.” case, The against (1926) likewise lands or Jackson case citation Bruggy with the and likewise without accord authority, Logan (1917) as well as the Hur ignored case (at p. Cal.App.) 448 of 78 tado and declared “it case only, provocation a in law that neither words settled rule insulting actions, or contemptuous, nor opprobrious, however any person, an nor tres gestures without assault against goods, of themselves re pass lands or are sufficient to deadly an intentional homicide with the offense duce ” (1923) manslaughter. But the weapon from murder to Golsh Logan (at held p. both the Hurtado and cases and case cited rule, their Cal.App.), 63 in accord with liberal 614 of more slayer provocation “The stir the heart of the which will reduces the homicide from murder passion that heat of manslaughter effect upon such would have like must be of ordi average of the man the mind and emotions man—the (1928) Davis case the nary self-control.” And court conflicting authorities, cited Hur completely ignored the broadly case, case, the Golsh case, Logan tado (at Cal.App.), “In state it p. has declared killing murder always been that to reduce held manslaughter ground quar on the of sudden degree to second passion such a rel ‘this heat of must be passion heat of naturally in the of an aroused mind passion as would ordinarily given facts and cir person reasonable under may cumstances, that, consequently, up no defendant set justify or excuse himself his conduct and own standard further aroused, unless passions fact are because that the circumstances jury believe sufficient facts ” ordinarily reasonable man.’ passions to arouse the added.) the rule in' the last two (Italics statements of cases, specifying Logan Hurtado and eases, like those (in surrounding circumstances effect as the test the acts, conduct, words, enough to include language broad “ordinarily man” reasonable deceased) upon etc., an in the limitation asserted man,” “average without an manifestly inconsistent notes, are Code Commissioners’ principle adhered to the the eases mentioned which have above Act and Punishments *17 long repealed in Crimes stated since (1857) of 1850 the Butler case. and decisions, that neither the of our noted, It to own is be expressly Logan (1917) (1883) ease was Hurtado ease nor the (1937) ease or in the Manzo Bruggy (1892) in the overruled Likewise, of District (1939) or in the French case. case (1923) nor the decisions, the Golsh Appeal Court neither Yet disapproved. or (1928) Davis case has been overruled Chutuk, Manzo, Turley, Bruggy, obviously French, Logan, if correctly the law the Jackson cases do not state correctly. Fairness Hurtado, Golsh, Davis cases state it general, particular to to the profession courts other jurisdiction, group demands that one or the lower gainsaid It cannot be squarely these cases overruled. be defining voluntary man- 192 of the Penal section Code stringent language of the slaughter fid omit the more Crimes are that the Act of 1850. We satisfied Code Punishments including not, by in their notes a merely Commissioners could case, (1857) from and of the Butler write statement citation seemingly stringent into the more liberal new statute If the cases since repealed limitation of the older act. uniformly adoption statute had followed the newer note, case, Logan or if the Hurtado Code Commissioners’ case, case, squarely and the ease had Davis been Golsh stronger basis cases, we should have much overruled later limita- actually holding for that a court-made present than is engrafted But the Hurtado tion has on the statute. become Logan case, case, opin- and the Davis case case, Golsh bases; thoroughly logical factual and ions are sound their challenge stating the of this they express as law stand without statute and with rules state; they are consistent with the overruling no them has been statutory construction; reason opinions. In of the any the inconsistent view pointed out directly law, conflicting rules of the with two uncertain state undertaking the cases reports in the and none of be found find decisions, inconsistent we and overrule discuss both rules make a choice. we must now not principle We are bound to consider the written into .the repealed (§23) being Crimes Punishments Act of 1850 as merely still the state law this because principle was recognized in the common omission, law. “No act or commenced day after o twelve ’clock noon of the on which this code takes law, effect is punishable, except as criminal or prescribed as by code, statutes, authorized some which continuing in specifies , it . . . force ordinance. some “ Code, 6.) (Pen. ...” The rule law, penal of the common § strictly construed, are application statutes to be has no to this provisions code. All its are be according construed terms, fair of their import objects with a view to effect its (Pen. justice.” Code, 4.) to promote A code section presumed only continuation common law when substantially (Scott it common law are and the the same. Cal.App.2d 678, McPheeters P.2d of¡the 562].) 93 P.2d 23' Crimes and Punishments Section substantially Act of 1850 on the same as the common law , sectiqn 192 subject Code, super of the Penal but it, substantially obviously seded is not It sub same. stantially statute, “Where a different. with reference subject given provision, contains a the omission of such one subject concerning from a similar statute a related provision *18 a subject] significant case, same is to show that this the [in (23 778, §154; Estate intention existed.” Cal.Jur. different 465].) (1933), Cal.App. 321, 131 326 P.2d Garthwaite [21 of ordinarily presumed Legislature that It is be the sub by deleting express provision an of a statute intended a McColgan (Southern change in Co. the law. v. stantial Pacific 81].) 54-55 has been Cal.App.2d 48, 68 P.2d It (1945), [156 changes introduced repeatedly declared that where have been they not without by it is to be assumed that amendment substantially amending a statute design and, further, that pre change an the Legislature demonstrates intent the (See Byram (1938), 11 Cal.2d existing Loew’s Inc. v. law. taking 1], cited.) “The 746, and cases therein 750 P.2d [82 1873, January, day of on the first effect of the Penal Code and Punish of the old Crimes operated repeal a that time at 16, (People v. Salvador April of 1850.” ments Act dis 801].) foregoing Prom the 15, 16 P. 71 Cal. [11 limitation that common law that the fact the appears cussion it fur regarded as which could types on the of circumstances man- homicide to nishing adequate provocation to reduce this statutory part law of originally the of slaughter was law. still is the holding that it proper basis is not a state fact, light repeal of the contrary On the aof it, together enactment incorporated which statute limitation subject important with the new law on same Legislature intended suggests that deleted, strongly rule. liberal more holding that

This court has been unanimous con susceptible of reasonably two language which is “When ordinarily construction penal in a law is used structions In adopted. offender will be favorable which more judi up ‘by words, criminal statutes will not be built other upon legislation. . . grafting cial . is also true [I]t doubt, every reasonable is entitled to benefit defendant true fact, question of or as to it arise out of a whether language used construction of interpretation words Ralph (1944), (People in a statute.’ [Citations.]” 401].) have 575, Cal.2d P.2d Here we do not re support ambiguous language in the statute to even If placed in instruction. limitation which was strictive specified in section quarrel passion” or heat of the “sudden stringent lan by the 192 of the Penal Code is to be limited guage note that “No words of the Code Commissioners’ re provocation reproach, grievous, however are sufficient intentional from murder duce offense of an homicide grafted upon manslaughter,” limitation must be incon entirely judicial construction. statute Some gruence definition imposing such a limitation the code depicted very language Bruggy case Cal.), (at 482 of 93 espouses p. it. The court there said some “Nothing surely is more calculated arouse the blood grievous reproach, passion men to a than heat words provocation offense yet an no words are sufficient to reduce well manslaughter; principle this is so murder to ’’ place. established in state that discussion be out of would principle had, course, by the Crimes been established repealed and Punishments Act of but that act had been super principle from the and the statement of such deleted *19 construction seding engage We in a statute. choose not to of this rewrite it the limitation law which would into simple language Legislature has written out. If the think rigorous the statute is to be altered so a limitation we come We action from prefer should Legislature. 144 written, giving provisions to its fair

apply the statute as “the People and terms,” doing we v. import their so follow 288, 292; Logan 63 (1883), supra, People Hurtado Cal. v. supra, (1917), supra, 45, 48; People (1923), v. 175 Cal. Golsh Cal.App. 614; People supra, 63 94 609, (1928), and v. Davis People Cal.App. (1857), v. 192,198. The case of Butler supra, 8 Cal. decided under Crimes and Punishments 435, regarded proper (§23), authority Act of 1850 cannot section quite different code enacted construction 1872; (1875), People Turley supra, 50 Cal. v. cases 481; Bruggy (1892), supra, 476, 93 469, 471; People v. Cal. People People (1937), supra, 594, 599; v. 9 Manzo Cal.2d they 744, (1939), 720, insofar as supra, v. French Cal.2d Hurtado, holdings People contrary pertinent are v. supra, People People Golsh, supra, Logan, supra, v. v. supra, pro People Davis, Likewise, are overruled. Cal.App. People supra, v. Chutuk nouncements Cal.App. (1926), supra, 78 768, 771, and in v. Jackson 448, 442, they inconsistent with the extent are disapproved. herein are expressed, views express the evidence in opinion as to We no whether Boyd as arouse part on the would case shows such conduct passion” referred to man the “heat of a reasonable if even Clearly evidence, section of the Penal Code. urges defendant, not as he favorably viewed most would voluntary higher offense than establish as a matter of law no man- manslaughter. voluntary justify It a verdict would of sec- slaughter a verdict but it is not insufficient to sustain degree question is one of fact for ond murder. proper under instructions. class in order stated,

For the above reasons jury properly homicide can be found instructed, judgment denying and the order defendant’s for a remanded motion are the cause is new trial reversed and for a new trial. J.,

Gibson, J., Traynor, concurred. J., Carter, C. Reporter’s May 1946, opinion judg- Note: On ment modified read as above. reading

SPENCE, J. apparent concur. It is I opinion, are foregoing together with the recent cases which made therein, painstaking attempt has been cited *20 first between distinctions respect to the with clarify law the volunary man- degree murder murder, second degree which of the instructions to indicate the nature slaughter, and concerning juries such distinctions given to should be however, appear, concerning matters. It would other also required judicial clarification is something than more that instructions clear, concise, and in order that understandable ac- the where important in of cases may class given be killing of fellow human a charged with the unlawful is cused in our is inherent difficulty being. that the real I believe legis- a has for that time come statutory provisions and the relating homicides lative of all code sections reexamination construing the those sections. light in the of decisions mainly relating found to homicides is substantive law A mere the Code. in sections 187 to 199 inclusive Penal of reading difficulty the those demonstrates sections in ordinary sitting juror, as encounter layman, the must significance sec- grasping their when the of those substance instruc- Perhaps is given tions the form of instructions. covering murder, tions “the the distinction between defined as aforethought” killing of being, unlawful a human malice with (Pen. 187), Code, as voluntary manslaughter, defined § . . killing being, “the malice . unlawful of a human without upon (Pen. 192), quarrel Code, passion” sudden or heat of § attempt easily should is be understood. But when a further degrees upon made to instruct the between the two distinction (Pen. 189) provoca- Code, upon murder the effect § grade degree tion reducing either of the offense (Pen. in rendering wholly justifiable homicide excusable Code, give 199), impossible it is practically §§ adequate clear, concise, instructions and understandable form complexity because the instruc- the unavoidable subjects. dealing duty tions Nevertheless, those it is the judge, of a existing statutory trial our law, under instruct subjects, all these many others, practically as well as every involving charge case murder.

When placed an accused on for trial life follow- own ing taking another, important the life of it is standpoint accused, state, of the as well as the jury, which is entrusted with perplexing problem the often of determining facts, should not be embarrassed com- plicated and confusing concerning law to be instructions applied present my the facts as In opinion, found. eliminated, complications and confusion

inevitable could part, degrees at if abolished, least murder leav- ing only voluntary the distinction man- between murder and slaughter permitting punishment fix jury the event that the guilty murder, accused is found in the punish- same fix jury permitted manner is now ment in guilty the event is found of first accused (Pen. 190.) if Code, appears little, murder. There to be § any, dividing degrees as reason into offense defined killing "the unlawful a human afore- being, with malice thought” (Pen. Code, 187), long permitted so *21 punishment to fix of imposed upon guilty the to be one found such hand, On law simplification offense. the other the of the resulting dealing simplification the of the instructions subject para- with of appear homicides would be of importance. degrees mount question The of whether murder questions should be abolished is several but one of might be by Legislature considered in the event that it attempts accomplish simplification. SHENK, J.I justice dissent. administration (cid:127)

should rigid not be a defeated too adherence to a close analysis technical jury. This the instructions to practice overly indulged prior people to 1911 when the reviewing this state took prescribed courts in hand mandate no misdirection should cause reversal unless complained the error of resulted miscar riage justice. VI, 4%, adopted (Const., art. October 1911.) my one, case opinion, This where Constitution judgment should be observed and affirmed. be Whether attempted remaking early law of the state from its beginnings question premeditation on and deliberation has resulted I clarification is doubtful. to conclude hesitate dealing long history this court its felonious rights has been homicides so oblivious the defendant’s to have sent men under to their doom what now said to be. prejudicial misapplication long of the law. The line of jurists preceding us are said to have been unable to now state Instructions, approved correct rule of law. this court generations, have Any become fixed law of state. change clarification, line if any necessary, should Legislature. be left to the J,,

Edmonds, concurred. Code notes enacted but the Commissioners’ Code (which manslaughter) “No section 192 defines state that provoca reproach, grievous, however are sufficient words an homicide from tion to reduce the offense of intentional Cal., manslaughter.—People [supra], 8 murder v. Butler Turley (1875), 469, 471, 50 this p. People 435.” v. Cal. In and Pun court, mentioning the fact that the without Crimes superseded by the repealed had been ishments Act 1850 Code, prin provisions of the Penal said that the stringent less long firmly of the Butler case is “so established ciple place.” But, discussion would out this State its directly contrary Turley case, and in to the accord with the People court in (1872) statute, Hurtado new v. man 288, 292, killing said that an intentional 63 Cal. passion the influence of slaughter it is committed under “when provocation an sufficient excite an insult caused (Italics added.) person.” passion a reasonable irresistible (in Bruggy, court Cal. In the Hurtado ease said that 26]) to follow cite P. failed adoption of the Penal law was as above Code the before the 23) Act, Punishments and that “While (Crimes and quoted Code, yet it has provision is found the Penal no similar pertaining the law to the sub suggested even never been any change adoption ject manslaughter underwent