CARTER, J. Defendant was convicted of first degree murder and assault with intent to commit murder. The punishment was not fixed by the jury. The hearing on his plea of not guilty by reason of insanity resulted in his being found sane by the jury. Judgment was thereupon pronounced imposing the death penalty as punishment for the crime charged in count one and imprisonment in the state prison for the term prescribed by law as punishment for the crime charged in count two. A motion for a new trial as to both counts was made and denied. An appeal comes automatically to this court from the judgment and order denying the motion for a new trial on both counts.
The victim of the killing was Wilbur, also called Murphy McSwain, and the victim of the assault was Alvin, also called Scotty McSwain, a brother of Wilbur.
On Saturday afternoon, April 22, 1950, shortly after 6 o’clock, defendant, a man 39 years of age, casually encountered Mrs. Ella McSwain, Wilbur’s mother, Josephine Davis, Ella’s cousin, and Alvin McSwain, all lifelong acquaintances, at the town of North Fork in Madera County. At Josephine’s request defendant drove the group in his car to the McSwain home a few miles from North Fork. After spending a short time at the McSwain home the women requested that they ride with defendant to Yosemite Forks, that being his destination. Henry Chenot joined the group and they went to Yosemite Forks where they attended a dance. Wilbur McSwain was [771]also at the dance. Nothing unusual happened at the dance. The dance ended about 2 in the morning and many of those attending, including the above mentioned persons, went to a place known as Kilroy’s Stand, where soft drinks and sandwiches were sold. According to the People’s evidence, defendant was there boasting that the Army was better than the Marine Corps and that he was an ex-soldier. Josephine Davis replied that there were a lot of ex-servicemen. Defendant slapped her in the face, and Henry Chenot, Alvin and Wilbur McSwain and others came to the rescue. They pushed defendant to the ground and told him to behave himself. He was allowed to get up and left for his home alone, some 35 to 40 miles away. When leaving he threatened to kill all of them, the whole “bunch,” the whole family; that he was going home to get his gun and kill them. In various words seven witnesses who were present at Kilroy’s Stand testified to the threat. Witnesses also testified that defendant was not struck in the altercation, and that while he seemed angry when he left, he was otherwise all right. Defendant drove to his home over a winding mountain road (35 to 40 miles away), obtained a rifle and ammunition and proceeded to the McSwain home. He reached the latter one to two hours after having left Kilroy’s Stand. He parked his ear beside the road about one quarter of a mile from the McSwain home, although there was available a road going to their place which he had used earlier in the day. He left his ear, taking his gun which was loaded with a cartridge in the firing chamber. He walked down a pole line rather than the road to the McSwain house. Finding no one there he sat on the porch to wait for them. After about 10 minutes he heard a car drive up. He got up from the porch and in so doing accidentally discharged the rifle. He approached the ear on its left side. In it were Marion Donnell and Wilbur McSwain in the front seat and Alvin McSwain and Ted Davis in the back seat. He said he was going to kill all of them except Donnell. The latter remonstrated with him and was told to “stay out of it” or he would be killed. Donnell was on the left side of the front seat. Defendant aimed the gun at those in the front seat and fired, the bullet going behind Donnell’s head and striking Wilbur who was then standing by the right front door. Wilbur later died from the wound. He then walked to the back of the car, pointed the rifle into it, and shot three times, inflicting three wounds on Alvin. He was then disarmed by those present and was later taken into custody.
[772]Defendant does not dispute the shooting. In other particulars, however, his story varies with the prosecution’s case. He testified that he did not slap Josephine at Kilroy’s Stand; he merely patted her “playfully” on the face endeavoring to quiet her, she being in an upset condition; that he was struck in the face thereafber and his teeth knocked out; that he suffered severe pain in his head all the time thereafter until and after he was taken into custody; that he does not remember making threats at Kilroy’s Stand; that he went to the McSwain home to find out what the trouble was all about and- to see what, if anything, he had done wrong. After leaving the porch at the McSwain home and the accidental discharge of the gun, he stepped in a hole while approaching the car and stumbled. When he recovered his balance the rifle came up in a firing position and discharged (the shot that killed Wilbur). He was merely shooting at the car when he wounded Alvin McSwain. He did not say anything prior to or at the time of the shooting. He did not intend to kill or injure anyone. He also testified that he did not remember much of what happened and did not know what he was doing. There is evidence that he purchased a bottle of whiskey and drank some of it in the course of the evening and also drank some beer, but none that he was intoxicated. An officer to whom he made a statement testified that defendant said he fired the gun, not pointing at anyone but just to scare the McSwainS.
There is no contention that the evidence was insufficient to support the conviction of first degree murder and it is clearly ample. Defendant urges that the court erred in refusing to give the jury instructions on manslaughter. The court remarked during the argument to the jury that it would give no such instructions and refused the following instruction offered by defendant: “Manslaughter is the unlawful killing of a human being without malice. Two kinds of manslaughter, the definitions of which are pertinent in this case, are:
“1. Voluntary manslaughter, which is that committed upon a sudden quarrel or heat of passion.
“2. Involuntary manslaughter, which is that done in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The prosecution also offered instructions on manslaughter but the trial judge refused to give them.
It is a settled rule that jury instructions must be responsive to the issues. The issues in a criminal case are [773]determined by the evidence. Here there was evidence which raised the issue of manslaughter. No instructions were given on this issue, although they were requested by both sides. Section 1127 of the Penal Code provides: “. . . The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.” (Emphasis added.) It has been held that a defendant is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak. As so ably stated in People v. Burns, 88 Cal.App.2d 867, 871 [200 P.2d 134], with ample citation of authority: “It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. (People v. Quimby, 6 Cal.App. 482, 486 [92 P. 493]; People v. Foster, 79 Cal.App. 328, 337 [249 P. 231]; People v. Hill, 76 Cal. App.2d 330, 343 [173 P.2d 26].) The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. (People v. Perkins, 75 Cal.App.2d 875, 881 [171 P.2d 919]; People v. Peete, 54 Cal.App. 333, 356, 359 [202 P. 51]; People v. Wong Hing, 176 Cal. 699, 705-706 [169 P. 357].) That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true. (People v. Perkins, supra, p. 881; People v. Williamson, 6 Cal. App. 336, 339 [92 P. 313]; People v. Keefer, 65 Cal. 232, 234 [3 P. 818].) It is the duty of the court to instruct the jury in regard to any included offense which the evidence tends to prove. (People v. Stofer, 3 Cal.App. 416, 418 [86 P. 734]; People v. Carroll, 20 Cal.App. 41, 45 [128 P. 4]; People v. Wilson, 29 Cal.App. 563, 564 [156 P. 377]; People v. Mock Ming Fat, 82 Cal.App. 618 [256 P. 270]; People v. Driscoll, 53 Cal.App.2d 590, 593 [128 P.2d 382].) In People v. Carroll, supra, the court said (p. 45): ‘It is undoubtedly the rule that, where there is any evidence from which a reasonable inference may be drawn that the crime of which the defendant was convicted was of a lesser degree ... it is prejudicial error to withdraw from the jury the consideration of such evidence and confine the instructions to the crime [charged].’ ” (Emphasis added.)
It has been repeatedly held that it is reversible error to refuse a manslaughter instruction in a case where murder [774]is charged, and the evidence would warrant a conviction of manslaughter. (People v. Wilson, 29 Cal.App. 563 [156 P. 377]; People v. Hayes, 9 Cal.App. 301 [99 P. 386]; People v. Sidelinger, 9 Cal.App. 298 [99 P. 390]; People v. Darrow, 212 Cal. 167 [298 P. 1]; People v. Wallace, 2 Cal.App.2d 238 [37 P.2d 1053]; People v. Best, 13 Cal.App.2d 606 [57 P.2d 168].)
It is said in People v. Hayes, 9 Cal.App. 301, 305 [99 P. 386], quoting from Stevenson v. United States, 162 U.S. 313 [16 S.Ct. 839, 40 L.Ed. 980]: “In the Stevenson case the judgment was reversed solely for the reason that the trial court refused to submit to the jury the issue of manslaughter. The language of the court, speaking through Justice Peckham, is exceedingly appropriate to the matter before us. It was there said: ‘The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true, and whether it showed that the crime was manslaughter instead of murder. It is difficult to think of a case of killing by shooting, where both men were armed and both in readiness to shoot, and where both did shoot, that the question would not arise for the jury to answer, whether the killing was murder or manslaughter, or a pure act of self-defense. The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self-defense, and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court. ’ ”
Taking the view defendant expressed to the officer who took a statement from him that he shot to frighten the McSwain boys but had no intention of killing or injuring anyone and did not aim at them, the jury could have found defendant guilty of involuntary manslaughter. As said in People v. McGee, 31 Cal.2d 229, 238 [187 P.2d 706]: “If defendant, as he testified, discharged the pistol with intent only to frighten, and not to shot deceased, and such act was not done in the exercise of defendant’s right of self-defense, he could be found guilty of involuntary manslaughter.” In such [775]shooting he might be committing an unlawful act, but it would not amount to a felony. The basis of that statement is that one type of involuntary manslaughter is a killing “in the commission of an unlawful act, not amounting to felony.” (Pen. Code, §192(2).) If the act committed by defendant was unlawful but did not amount to a felony then his crime would be manslaughter. The unlawful act would fall short of assault with a deadly weapon (Pen. Code, § 245), or even assault (Pen. Code, §240), if the jury chose to believe his testimony that he had no intent to kill or injure anyone. This follows from the definition of an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, §240.) One could not very well “attempt” or try to “commit” an injury on the person of another if he had no intent to cause any injury to such other person. Assault with a deadly weapon is nothing more than an assault where there is used either a deadly weapon or any means of force likely to produce “great” bodily injury. (Pen. Code, §245.) The crime here involved, if defendant’s testimony is accepted as true, would seem to be a misdemeanor. “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, or any other deadly weapon whatsoever, in a rude, angry or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor.” (Pen. Code, §417.)
It has been held that “If the act is wrongful and the firing of a gun under the circumstances is unlawful, the intent may be inferred from the method used, including the position of the parties and all of the surrounding circumstances. ‘Where the act is both unlawful and wrongful, and well calculated to inflict serious personal injury, the law will imply malice and an unlawful intention and override any actual intention existing in the mind of the aggressor. Thus, while it is not an assault to fire a gun in the air for the purpose of frightening another, it is an assault, without regard to the aggressor’s intention, to fire a gun at another or in the direction in which he is standing. The law will not tolerate such a reckless disregard of human life.’ ” (People v. Peak, 66 Cal.App.2d 894, 901 [153 P.2d 464].) (See, also, People v. Gorlett, 67 Cal.App.2d 33 [153 P.2d 595, 964]; People v. Bumbaugh, 48 Cal.App.2d 791 [120 P.2d 703].) But as seen from the foregoing discussion, those cases fly in the face of the wording [776]of sections 240 and 245 of the Penal Code and People v. McGee, supra. It is true that in assault cases intent need not be specific—to cause any particular injury and it may be implied from the act (People v. McCoy, 25 Cal.2d 177 [153 P.2d 315]), but the intent is a question for the jury. If the above quoted statement from the Peak case is accepted as the law of this state, it would always be second degree murder when a person kills another with no intent to do so, but does so as the result of his reckless conduct. It may be that an intent can be inferred from such conduct but it also may constitute manslaughter, as a killing in the “commission of a lawful act which might produce death . . . without due caution and circumspection.” (Pen. Code, §192(2).)
Accepting defendant’s testimony that he stumbled, and the gun went off, and that he did not intend to shoot or injure anyone, yet he was carrying the gun with a cartridge in the firing chamber, with the gun pointed forward, and approaching a car occupied by persons, the jury would have been justified in concluding that he did not act with “due caution and circumspection.” A killing is manslaughter where it is done in the commission “of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (Pen. Code, § 192(2).) It has been held repeatedly that a killing resulting from the negligent handling of firearms may be manslaughter. (People v. Searle, 33 Cal.App. 228 [164 P. 819]; People v. Hubbard, 64 Cal.App. 27 [220 P. 315]; People v. Alterna, 75 Cal.App. 642 [243 P. 461]; People v. Sidwell, 29 Cal.App. 12 [154 P. 290]; People v. Sica, 76 Cal.App. 648 [245 P. 461].) Under some circumstances a claim supported by evidence that the killing was accidental will not justify an instruction on manslaughter, for the defendant is either guilty of murder or not guilty of any crime. (See People v. Eggers, 30 Cal.2d 676 [185 P.2d 1].) But here, as above shown, the jury could have found defendant guilty of manslaughter on the ground that the “accident” was the result of his negligence.
Defendant’s defense, as seen, would not exonerate him completely, but if believed, he could not be found guilty of either first or second degree murder. Thus, the jury, if it believed defendant’s evidence, could find that he had committed an offense which was neither first nor second degree murder, but a lesser public offense—manslaughter. Under the instructions, however, it could not find him guilty of that [777]lesser offense. It had to find him guilty of murder (first or second degree) or acquit him.
The cases relied upon by the People are not controlling. In People v. Mandell, 48 Cal.App.2d 806 [120 P.2d- 921], People v. Alcalde, 24 Cal.2d 177 [148 P.2d 627], People v. LaVers, 130 Cal.App. 708 [20 P.2d 967], People v. Du Bois, 16 Cal.App.2d 81 [60 P.2d 190], People v. Gibson, 92 Cal. App.2d 55 [206 P.2d 375], and People v. Danielly, 33 Cal.2d 362 [202 P.2d 18], there was no evidence upon which a manslaughter conviction could be based (defendant was guilty of murder or not guilty) and thus an instruction on the subject of manslaughter would not be proper. People v. Manzo, 9 Cal.2d 594 [72 P.2d 119], held that words could not constitute provocation sufficient to reduce the offense to manslaughter, but was overruled by People v. Valentine, 28 Cal.2d 121 [169 P.2d 1].
Defendant rests his claim for a manslaughter instruction on the basis of a voluntary killing in the heat of passion. By reason of the result reached that point need not be discussed. He probably was not entitled to such an instruction because he positively testified that he did not intend to kill or injure anyone, thus it was not a voluntary killing. He said he went to the McSwain home to see what he had done wrong—no anger or passion was suggested.
In addition to the error in failing to instruct on the subject of involuntary manslaughter, the court erred in giving the following instruction: “There need be, however, no considerable space of time devoted to deliberation or between the formation of the intent to kill and the act of killing. It is only necessary that the act of killing be preceded by, and be the result of a concurrence of will, deliberation and premeditation on the part of the slayer to constitute murder in the first degree, regardless of how rapidly or slowly these mental processes succeed each other or how quickly or tardily they are followed by the act of killing,” and in refusing to give an instruction offered by defendant defining “deliberate” and “premeditated” as set forth in People v. Bender, 27 Cal.2d 164, 183 [163 P.2d 8], The word “considerable,” used as an adjective, means “Worthy of consideration; of importance or consequence.” (Webster’s New Inter. Dict. (1943).) The instruction as given leaves no ground for the classification of murder of the second degree. (People v. Honeycutt, 29 Cal.2d 52, 60 [172 P.2d 698]; People v. Bender, supra, 182-185; see, also, People v. Valentine, 28 Cal.2d 121, [778134] [169 P.2d 1].) While the court correctly instructed the jury as follows: ‘ ‘ The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide to and commit the unlawful act causing death,” such instruction, under the circumstances, does no more than create a conflict with the incorrect instruction and we cannot speculate on which of the conflicting instructions the jury followed. (People v. Dail, 22 Cal.2d 642, 653 [140 P.2d 828]; People v. Honeycutt, supra.)
He was prejudiced, asserts defendant, by the failure of the officers to permit him to examine the statement given by him to them after it was transcribed. He was told the statement would be typed and he would be given an opportunity to examine it and requested to sign it. Neither was done. While defendant stated that at the time he gave the statement he was suffering severe pain in his head and was confused, there is ample evidence that he was not acting under duress, and he was fully advised of his rights. Defendant is in no position to assert that in' giving his statement he relied upon a promise that the statement would be transcribed and he could examine it, as the claimed “promise” was made at the conclusion of the questioning. We are not referred to any authority that extrajudicial statements made by one accused of a crime must be transcribed and examined by the accused before they are admissible in evidence. The weight of defendant’s replies to the questions put to him in the light of his claimed confusion and physical condition was for the jury.
Finally, defendant argues that there was insufficient evidence that he “wilfully, unlawfully, feloniously and with malice aforethought” and intentionally assaulted Alvin Me-[779]Swain with the intent to murder him. He refers to his testimony that he had no intent to kill or injure anyone and did not point the gun at Alvin. There is ample evidence as heretofore outlined to sustain the conviction of assault with the intent to commit murder.
There is no inconsistency in an affirmance of that conviction and a reversal of the murder count because there was no negligence claimed in the shooting of Alvin. There is ample evidence that it was intentional.
No claim is made of any error in the insanity phase of the trial. It appears that defendant was confined to a state mental hospital for six years, ending over 10 years ago, with an initial diagnosis of dementia praecox, later changed to traumatic psychosis, apparently caused by a skull fracture. Defendant testified but produced no medical witnesses. Pour qualified doctors testified that defendant was sane when the killing and assault took place.
The judgment and order denying a new trial on the first count (first degree murder) are reversed. The judgment and order denying a new trial on the second count (assault with intent to commit murder) are affirmed.
Gibson, C. J., Traynor, J., and Schauer, J., concurred.