Opinion
Page __
__ Cal.App.2d __ 319 P.2d 52 The PEOPLE of the State of California, Plaintiff and Appellant, v. Walter G. BORCHERS, Jr., Defendant and Respondent. Cr. 5969. California Court of Appeals, Second District, Second Division Dec. 12, 1957Hearing Granted Feb. 5, 1958.
[319 P.2d 53] Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Jere J. Sullivan and Fred N. Whichello, Deputy Dist. Attys., Los Angeles, for appellant.
Ellery E. Cuff, Public Defender, James P. Nunnelley and Richard F. Bird, Deputy Public Defenders, Los Angeles, for respondent.
ASHBURN, Justice.
Defendant was convicted of murder in the second degree, the victim being one Mary Dorothy McCulley. Upon the hearing of his motion for new trial the court denied that relief but, in lieu of granting same, reduced the verdict to voluntary manslaughter, this pursuant to Penal Code, § 1181, subdivision 6. Defendant took no appeal from the judgment or the order denying a new trial. The People, acting under Penal Code, § 1238, subdivision 6, appealed from the order modifying the verdict.
It is now established that the court properly weighs the evidence in considering the matter of reducing the offense. It was so ruled in People v. Sheran, 49 Cal.2d 101, 315 P.2d 5, which was decided during the pendency of this appeal. The problem at bar is thus reduced to the question of whether there is evidence of substantiality supporting the implied finding of the judge that the killing occurred 'upon a sudden quarrel or heat of passion' (Pen.Code, § 192, subd. 1). The Sheran case, supra, says at page 109 of 49 Cal.2d at page 10 of 315 P.2d: 'The second question which presents itself is whether there is evidence in the record, or inferences to be drawn from that evidence, to support the trial court's determination that the defendant was guilty of no greater crime than manslaughter. Unless we can say as a matter of law that there is no evidence in the record, and that no inference can be drawn from the evidence contrary to those drawn by the jury, we must affirm its order reducing the class of the crime.'
Pen.Code, § 192. 'Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds: 1. Voluntary--upon a sudden quarrel or heat of passion. * * *'
The differentiating factor between second degree murder and voluntary manslaughter is the presence or absence of malice (People v. Samsels, 66 Cal. 99, 101, 4 P. 1061; People v. King, 30 Cal.App.2d 185, 204, 85 P.2d 928). Section 188, Penal Code, defines malice as follows: 'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, [319 P.2d 54] or when the circumstances attending the killing show an abandoned and malignant heart.' Construed together, this section and § 192, subd. 1 mean that immediacy of considerable provocation precipitating a sudden quarrel or heat of passion negates the existence of implied malice and (absent premeditation) reduces the crime to manslaughter. People v. Bender, 27 Cal.2d 164, 181, 163 P.2d 8, 18, defines manslaughter as follows: 'Manslaughter (vonuntary; we are not here concerned with involuntary manslaughter): a willful act * * * characterized by the presence of an intent to kill engendered by sufficient provocation and the absence of premeditation, deliberation, and (by presumption of law) malice aforethought.' People v. Valentine, 28 Cal.2d 121, 137, 169 P.2d 1, 11: "To reduce a felonious homicide from the grade of murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character as would be naturally calculated to excite and arouse the passion. * * *"
Counsel are agreed that there is no evidence of a sudden quarrel at bar. The ruling must be sustained, if at all, upon the basis of 'heat of passion' as the actuating cause of the homicide. Heat of passion is not defined by the code. The phrase has been construed to be not confined to anger but to extend to any passion, such as jealousy or terror, which disturbs or obscures defendant's reason to such an extent as would render an ordinary man of average disposition likely to act rashly, without due deliberation and reflection, and from passion rather than judgment. People v. Danielly, 33 Cal. 2d 362, 377, 202 P.2d 18, 27. Defendant is to be weighed in the balance of an ordinary, reasonable man; his excessive fears or uncontrolled passions cannot serve to reduce his crime to manslaughter; in order for that to occur his passion must be that which the circumstances would have aroused in a person of ordinary self-control. "[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and * * * consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. Thus, no man of extremely violent passion could so justify or excuse himself if the exciting cause be not adequate, nor could an excessively cowardly man justify himself unless the circumstances were such as to arouse the fears of the ordinarily courageous man. * * * But as to the nature of the passion itself, our law leaves that to the jury, under these proper admonitions from the court. For the fundamental of the inquiry is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion--not necessarily fear and never, of course, the passion for revenge--to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.' (People v. Valentine, 1946, 28 Cal.2d 121, 139, 169 P.2d 1; People v. Logan, 1917, 175 Cal. 45, 48-49, 164 P. 1121.)' People v. Danielly, supra, 33 Cal.2d 362, 377, 202 P.2d 18. People v. Sheran, supra, 49 Cal.2d 101, 110, 315 P.2d 5, 11 quotes with approval the following language of People v. Golsh, 63 Cal.App. 609, 614, 219 P. 456: "The provocation which will stir in the heart of the slayer that heat of passion which reduces the homicide from murder to manslaughter must be such as would have a like effect upon the mind and emotions of the average man--the man of ordinary self-control." To the same effect see, People v. Valentine, supra, 28 Cal.2d 121, 140, 169 P.2d 1. Moreover, the defendant must have acted under the smart of immediate passion (People v. Jones, 160 Cal. 358, 367, 117 P. 176), so soon that 'hot blood had not had time to cool' nor reason had opportunity to resume its empire (People v. Wells, 10 Cal.2d 610, 618, 625, 76 P.2d 493, 499).
[319 P.2d 55] While the question of whether the circumstances of a particular case give rise to the heat of passion contemplated by the statute is ordinarily one for the jury acting under proper instructions, the question often resolves itself into one of law. For instance, the passion aroused by witnessing a wife engaged in adultery is recognized as sufficient as a matter of law; merely hearing of her reputation for such conduct probably is not enough. See Garcia v. People, 64 Colo. 172, 171 P. 754, 755; People v. Arnold, 116 Cal. 682, 686, 48 P. 803; People v. Ashland, 20 Cal.App. 168, 175-177, 128 P. 798; 40 C.J.S. Homicide § 49, p. 914. And so the task at bar is to determine whether the evidence discloses as matter of law that there was no heat of passion sufficient to reduce the gravity of the offense from second degree murder to manslaughter.
The only evidence of the facts immediately surrounding the crime came directly or indirectly from the lips of defendant. First his own story must be examined and if it discloses no heat of passion the circumstantial evidence is to be viewed in order to see whether it discloses, contrary to defendant's testimony, any such passion as the law recognizes. It is upon this latter basis that the trial judge's ruling apparently rests.
On May 13, 1956, defendant, an insurance broker and general agent, by chance met decedent (who throughout the trial was called 'Dotty') at the zoo; she had with her an illegitimate boy named Tony, four years old, whom she had reared and was seeking to adopt. Defendant, aged 45, was married and in the process of divorce. The woman was 29 years old and had been married to one 'Chicken Louie' Farrantello, apparently a gambler and underworld character, as defendant later discovered. Defendant and Dotty saw each other almost daily until Tuesday, October 9, 1956, the date of the homicide. Nine days after meeting they became engaged to marry and defendant opened a bank account for her. As an engagement present he took her to Las Vegas where they recited 'our little common-law marriage ceremony.' Upon returning to Pasadena he gave Dotty power to sign checks on his various bank accounts, made delinquent payments on her automobile and made her the beneficiary of certain 'business insurance on my life' in which he estimated his imterest to be worth $85,000. Defendant became active in efforts to promote the adoption of Tony. He also installed Dotty and the boy in an apartment in Pasadena. A meretricious relationship between him and Dotty began soon after their meeting, though the exact date does not appear. Shortly after the Las Vegas trip defendant became aware that certain 'big-time hoodlums' and 'underworld characters' were in the background of Dotty's life. They were acquaintances of her former husband and were named Marvin Ralph Prestridge and Nick Cascio. Defendant was infatuated with Dotty to such an extent that he testified there was a 'very real and a very deep love' between them, 'a mutual trust and understanding which was so complete that for the first time in my life I was able to trust an individual implicitly, completely, absolutely, and without any questions or holds barred.' 'Q. As a matter of fact, this love that you refer to, wasn't that purely a physical infatuation? * * * A. No. Our relationship was such that the physical relationship was very, very definitely sublimated by something far deeper and richer and precious. I would have to answer that no.' Nevertheless, defendant became suspicious and personally began to check upon Dotty's men visitors who arrived after he left in the evenings. He also hired a private detective, Jack Fagg, 'to check the background and associates or past associates of Dotty,' especially the backgrounds of Prestridge and Cascio. Defendant discovered that Prestridge had a steamer trunk in the back of Dotty's car containing burglary tools. He believed that Dotty and Prestridge were having sexual relations and she admitted the fact to defendant, doing so several days before the Tuesday night of the killing. 'She did [319 P.2d 56] not admit that on Tuesday night. She admitted that to me prior to that time. Q. A few days prior? A. That is right, and it was understood and everything was forgotten from that standpoint, and she made a definite statement about Prestridge at that time.' Decedent gave some vague explanation about her relations with Prestridge having grown unintentionally out of her efforts to help him, but Fagg reported to defendant that she was quite receptive to Prestridge's advances, was voluntarily sleeping with him and also taking money from defendant and giving it to Prestridge, who had a Dallas police record as a pimp. Also, that defendant was 'being set up for a possible murder.' As indicated, Dotty's admission of her relations with Prestridge occurred several days before the homicide, not later than the preceding Friday, which was four days before the shooting. Indeed, defendant admitted on cross-examination that it was discussed between them ten or twelve days before the shooting.
On that evening, October 9th, she and defendant dined together at a restaurant, leaving there about 9:30 p. m.; she seemed happy and carefree and wanted to take a drive, so they drove through Pasadena, Altadena, La Canada and then to the Rose Bowl. About the time they reached the Bowl her mood changed to one of despondency over fear that she would fail in her effort to adopt Tony. She removed defendant's .32 caliber automatic from the glove compartment, ejected one cartridge and replaced it with a 'live one.' She asked defendant to shoot her and the boy and then himself. The pistol was on the seat between them pointing toward his knee and she had her hand over it. '[T]o the best of my knowledge there was no hate, there was no ill feeling, there was no animosity, on irritation, but for some reason the gun which was on the seat of the car, I picked it up.' She said she did not have the nerve to shoot herself and asked him three times to do so. 'Q. Was there a suicide pact between you and Dotty just before the shooting? A. By a suicide pact if you mean she commit suicide and I told her I would too, then there was a suicide pact. Q. Didn't she ask you to shoot her and then shoot yourself? A. She asked me to shoot her, then shoot Tony, then shoot myself.' He laid his hand over hers, she withdrew her own and he had the gun. She leaned over and kissed his cheek; as she did so he put his arm with the gun up on the back of the seat, with the gun pointed at her head. 'I had thought of throwing it in the back, but I didn't want to throw it back there, and I didn't want to make too much of a point so she would feel I actually tried to take the gun away from her. I was trying to do it as carefully as I could. But I didn't throw it in the back seat, and if I only had. But it was still in my hand on the back of the front seat.' As related by defendant to Fagg, he continued to drive with one hand while the gun was pointed at the head; she said she was going to look at the neon sign over the Rose Bowl and wanted him to shoot her. She turned and said "Go ahead and shoot, what is the matter, are you chicken.' And she looked back at the Rose Bowl and the next thing he knew he heard a loud noise and her body fell over in his lap.' Defendant's own testimony: 'I remember Dotty had remarked about the neon sign which is visible from that point. The gun, as far as I can determine, had to be in my hand, and I heard the explosion. That was the first thing that I recall after Dotty speaking about the sign over the Rose Bowl. I felt like the whole world had blown up in that car. Of course, I can't tell you exactly what I did. I presume I took my foot off the gas. I know--I say I know--the car seemed to slow up. I was conscious of a certain awareness of that. I was aware of the gun being in my hand. I heard the explosion, and I saw Dotty's head seemed to move forward, then back again, and she fell across the seat with her head coming to rest beside my right leg.'
Malice is implied 'when the circumstances attending the killing show an abandoned and malignant heart.' Pen.Code, § 188.
[319 P.2d 57] In its bearing upon this phase of the matter defendant's subsequent conduct is pertinent. He considered calling a doctor, but without stopping the car (because he was afraid of being questioned), headed for his office. He knew the location of the emergency hospital which was about one-third of the way to the office, and also knew the location of the Huntington Hospital, but he did not take the victim to either of those places or to any physician. She slid or was pushed to the floor boards as he fled the scene. He continued to his office, suspected that he was being followed and drove around until he concluded that was no longer true, then went some ten to fifteen miles, past the Santa Fe Dam which is near Monrovia. Dotty had a hole in the back of her head, was bleeding profusely and was moaning and groaning; so he stopped the car and 'in order to put her out of her misery' he hit her on the head with the butt end of the automatic thus causing a transverse fracture of the skull which accelerated the death that was already inevitable. 'She didn't moan much after that blow. One thing I recall is that I told her that I was sorry, that it wouldn't be long until I would be with her.' In the course of striking the woman the magazine of the gun was broken to such extent that the clip would no longer stay in place. Defendant then transferred the body to the trunk of the car and drove about 140 miles to a camp site at Lake Henshaw, intending to shoot himself after disposing of the body. On arrival at the camp site he opened the compartment, uncovered the face of the corpse and fell asleep beside the body. After waking he removed her engagement ring from the finger and later turned it over to his wife for safe-keeping. About noontime he bought gasoline, washed, ate at a cafe, purchased four one hundred dollar money orders which he intended to mail to his wife before killing himself, but instead of doing so he drove back to Monrovia. There he contacted Jack Fagg and arranged to meet him in Arcadia. Thence he went home, washed, changed his clothes, ate, gave the engagement ring and Dotty's watch to his wife to keep and went to meet Fagg. He there revealed the fact that he had the body in the back of his car. This series of events following the shooting points directly to 'an abandoned and malignant heart.'
The court's ruling was expressed in this language: 'Tested in that light [the duty to weigh the evidence] and tested further in the light of the evidence of the psychiatrists on the mental condition of this defendant, I am not satisfied that the evidence is sufficient to sustain the finding of malice to make this a second degree murder; hence, the Court in lieu of granting a new trial will reduce the degree to that of voluntary manslaughter.'
The malice of manslaughter need not be that state of mind described in Penal Code, § 7, subdivision 4; it is the implied malice of § 188. People v. Harris, 169 Cal. 53, 65, 145 P. 520; People v. Bender, supra, 27 Cal.2d 164, 180, 163 P.2d 8.
In order properly to find absence of malice there must have been substantial evidence of 'considerable provocation' as well as absence of 'an abandoned and malignant heart' (Pen.Code, § 188), and that provocation must have resulted in 'a sudden quarrel or heat of passion' (§ 192, subd. 1). As previously observed, there is no evidence, direct or indirect, of any sudden or other quarrel and neither side asserts that there is. The most that can be spelled out of the evidence above reviewed, in the way of provocation or heat of passion, is a smoldering jealousy of the thug who was sleeping with Dotty, or resentment at her sharing bodily favors with him. But defendant's suspicion of the existence of this situation had been verified by Dotty several days before the killing. Whether the cooling period had elapsed is to be tested by the reactions of a normal man. Defendant cannot [319 P.2d 58] be excused on the ground of his own mental or emotional instability (People v. Danielly, supra, 33 Cal.2d 362, 377, 202 P.2d 18; People v. Golsh, supra, 63 Cal.App. 609, 613-614, 219 P. 456; People v. Logan, 175 Cal. 45, 48-49, 164 P. 1121; 25 Cal.Jur.2d § 258, p. 792). 'Mere unrestrained and unprovoked rage, or a 'heat of passion' to wreak vengeance, of a legally sane although emotionally unstable or nervous person is no defense to homicide.' People v. Danielly, supra, 33 Cal.2d at page 377, 202 P.2d at page 27. Defendant entered a plea of not guilty by reason of insanity; the jury found him sane at the time of the crime; the court denied a new trial upon that issue; and defendant has not sought to review that ruling in any manner. That one who has unsuccessfully interposed that plea is in no different position than any other defendant is made plain in the Danielly case, supra, 33 Cal.2d at pages 377 and 383, 202 P.2d at pages 27 and 30.
There seems to have been fear on defendant's part for the safety of both of them, but that could not supply the necessary provocation or the heat of passion which would ameliorate the crime of slaying her.
Evidence given with respect to the plea of insanity could not properly be considered upon the issue of guilt when presented on motion for new trial. See People v. French, 12 Cal.2d 720, 739, 87 P.2d 1014. To hold that the court upon a motion for new trial, or one to reduce the degree of the offense, could consider evidence which the jury is forbidden to treat as proof upon the issue of guilt (People v. Wells, 33 Cal.2d 330, 351, 356, 202 P.2d 53; People v. Marshall, 99 Cal.App. 244, 227, 278 P. 258; People v. Emme, 120 Cal.App. 9, 12, 7 P.2d 183; People v. Phillips, 102 Cal.App. 705, 283 P. 821; People v. Davis, 94 Cal.App. 192, 270 P. 715), would be to deny the right to a jury trial, one which belongs to the state as well as the defendant. People v. Stoll, 143 Cal. 689, 696, 77 P. 818; People v. Wisecarver, 67 Cal.App.2d 203, 209, 153 P.2d 778.
When weighing the sufficiency of provocation in the balance of the normal reasonable man, it cannot be said that such a one who has discovered infidelity of his mistress will, after the lapse of several days and the transaction of ordinary affairs, be in such a white heat of passion that he will kill her. With him the cooling period would have elapsed and the way out of his unpleasant situation would be sought in some direction other than killing the mistress. Referring to People v. Bush, 65 Cal. 129, 3 P. 590, this court said in People v. Golsh, supra, 63 Cal.App. 609, 617, 219 P. 456, 459: 'In that case our Supreme Court held that 'cooling time' is the time in which anordinary man, in like circumstances, would have cooled. The rule approved by the majority of our courts is that 'cooling time' is not the time it would take an ideal man or the defendant, but the time it would take the average man or the ordinarily reasonable person, under like circumstances. The Supreme Court of Oklahoma in In re Fraley, 3 Okl.Cr. 719, 722, 109 P. 295, 296, 139 Am.St.Rep. 988, 990, states the rule thus: 'And the authorities are all agreed that the question is not alone whether the defendant's passion in fact cooled, but also was there sufficient time in which the passion of a reasonable man would cool. If in fact the defendant's passion did cool, which may be shown by circumstances, such as the transaction of other business in the meantime, rational conversations upon other subjects, evidence of preparation for the killing, etc., then the length of time intervening is immaterial. But if, in fact, in did not cool, yet if such time intervened between the provocation and the killing that the passion of the average man would have cooled and his reason have resumed its sway, then still there is no reduction of the homicide to manslaughter.' (Italics ours.)'
People v. Ashland, supra, 20 Cal.App. 168, 176, 128 P. 798, 802: 'The law expects and indeed demands that a person sufficiently wronged by another to arouse in him that heat of passion' which, if life were taken immediately upon the happening of the provocation, would make the crime manslaughter, shall, if he does not slay him who is guilty of the provocation at the instant it is given, permit his passion, thus aroused, to subside, and where in such case sufficient 'cooling time' intervenes between the act of provocation by the deceased and the act of killing by the defendant the latter act, although prompted by the provocation, will be deemed to have been the result of deliberate [319 P.2d 59] premeditation or predetermination to take life. If Ashland was in possession of his reason so as to be responsible for his act, ample time had elapsed for his passion to subside--that heat of passion which will reduce unlawful homicide from murder to manslaughter--between the time at which he received the confession of his wife and the time when, after persistent and relentless search for Gofield and the making of threats against his life, he found and slew him.' 20 Cal.App. at page 177, 128 P. at page 802: 'The principle, however, stated and applied in the Utah case is applicable to our law of homicide, and simply means, as we have shown, that, while the taking of life in the heat of passion will make the crime manslaughter, it will be conclusively inferred that the homicide was not committed in the heat of passion from the fact of the intervention of a long period of time between the provocation and the act of killing. In other words, as is said by the Utah court in the Halliday Case, the law will not permit the defendant to deliberate upon his wrong and, avenging it by killing the wrongdoer, set up the plea that his act was committed in the heat of passion.' To the same effect see, People v. Smith, 14 Cal.2d 541, 544, 95 P.2d 453; People v. Glaze, 139 Cal. 154, 162, 72 P. 965; People v. Arnold, supra, 116 Cal. 682, 686, 48 P. 803.
Dotty's sexual relations with Prestridge had been disclosed to defendant not later than the Friday preceding the shooting; it was discussed on the way home from San Diego on that Friday, when Dotty, saying she was no good, attempted to jump from the car; at her request defendant stayed at her apartment that night; on the following Sunday they planned for him to go to Brazil and later return to take Dotty and Tony there so that they would no longer be in fear of Prestridge and Cascio; a plane reservation was made for him but was later cancelled; 'it was understood and everything was forgotten from that standpoint.' On Tuesday evening he presented her with an orchid and they were happy together during dinner, but later they made a suicide pact believing that Prestridge and Cascio 'would never leave us alone.' The evidence does not warrant an inference that this defendant was acting in the heat of passion as he fired the fatal shot.
Throughout the trial counsel for defendant referred to the shooting as an accident and they do the same thing in their brief, but they do not argue that it really was an accident, merely that it was not maliciously done. The jury ruled, as did the trial judge, that the shooting was intentional, for intent is of the essence of manslaughter as well as murder in either degree. People v. Bender, supra, 27 Cal.2d 164, 179, 181, 163 P.2d 8; People v. Valentine, supra, 28 Cal.2d 121, 130, 169 P.2d 1; People v. Miller, 114 Cal.App. 293, 300, 299 P. 742. There is no occasion to further consider the suggestion of an accident.
Defendant's counsel embrace the following suggestion of the appellant's brief: 'Under all these circumstances the jury might well infer from the positive finding of spermatazoa in the vagina of the deceased and the vasectomy of the defendant, occurring several years before (rendering him of course, incapable of responsibility of the positive nature of that test), that the conduct of the deceased earlier on the day of her death was discussed with the defendant and facts consistent with the finding of the test admitted by her adding to the already manifold causes of his motivation to kill her.' There is no slight evidence to the effect that any such discussion occurred on the evening in question. Defendant testified: 'Q. Isn't it true, Mr. Borchers, that the reason that you shot Dotty McCully was because you had confronted her with the fact she was living with Prestridge, that you believed her denials up to the night of the shooting, and that when she admitted it to you you shot her for that reason? A. No, Mr. Smith. She did not admit that on Tuesday night. She admitted that to me prior to that time.' There is but the possibility of such an occurrence and a mere possibility does not constitute evidence. People v. Williams, Cal.App., 311 P.2d 117. 'Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference [319 P.2d 60] and does not constitute proof. An inference must be 'warranted by a consideration of the usual propensities or passions of men, [or] the particular propensities or passions of the person whose act is in question * * *.' (Code Civ.Proc., § 1960.)' People v. Bender, supra, 27 Cal.2d 164, 186, 163 P.2d 8, 21.
Respondent's counsel also make the following suggestions: 'A reading of the Reporter's Transcript would create a suspicion, if not more, that defendant's reason had been dethroned continuously from a few days after he met deceased up to and including the entire duration of proceedings in the trial court. The jury and the trial court had more than the words now in the Reporter's Transcript to guide them to a conclusion--they had the living, breathing personal presence of the defendant. * * * Once we accept the idea that this defendant was 'mad' (using the word in its correct sense, not the American slang sense) over this woman, and was still in the grip of the 'madness' on the fatal occasion, several (but, of course, not all) of the matters assigned above as motives become items of provocation.' It appears, however, that if such a finding were made it would be based upon defendant's own instability of character and emotions, not the reactions of an ordinary, reasonable man.
Upon the issue of guilt the defendant is conclusively presumed to be sane. Pen.Code, § 1026; People v. French, supra, 12 Cal.2d 720, 739, 87 P.2d 1014.
This is one of those cases in which the evidence is not susceptible of conflicting inferences, one in which it must be held as matter of law that there was no substantial evidence of considerable provocation for the killing and no substantial evidence of any killing upon a sudden quarrel or heat of passion. The evidence would sustain a finding of first or second degree murder, but not one of voluntary manslaughter. The order must be reversed insofar as it reduces the crime from second degree murder to voluntary manslaughter.
For guidance of the trial court in further proceedings one other contention will be discussed. Appellant argues that reversal will mean a restoration of the verdict and a re-sentence in accordance therewith. Respondent argues that if the ruling is reversed the case should be remanded to the trial court 'without any restriction preventing the trial court from ruling on the defendant's motion for a new trial on the merits thereof.' Defendant has taken no appeal whatever. The People appeal only from the order modifying the verdict. As no one has complained of denial of a new trial, that order is final. The reversal of the order modifying the verdict necessarily results in restoration of the verdict and requires a re-sentencing in accordance with it.
The order modifying the verdict by reducing the offense to voluntary manslaughter is reversed with instructions to the lower court to re-arraign defendant and sentence him in accordance with the verdict as rendered.
FOX, Acting P. J., and RICHARDS, J. pro tme., concur.