majority reverse these con-The victions of second degree murder because of misdirection of the jury with respect to certain of the trial court’s instructions dealing with a “killing done in the perpetration . . . of . . . [an] assault with a deadly weapon, or in the violation of Section 182 of the Penal Code, conspiracy” (ante, p. 457) which classified such offenses as second degree murder instead of manslaughter.
The overwhelming weight of the evidence shows that defendants were extremely fortunate not to have been found guilty of murder in the first degree—and I respectfully submit that to reverse their convictions by the jury of the lesser offense of second degree murder is a miscarriage of justice.
The crime charged was not of a killing in the perpetration of an assault with a deadly weapon or of conspiracy. It was that defendants murdered George Mack.
The court instructed on conspiracy, as it did on a killing as a result of a robbery, or of an assault with a deadly weapon, only because during the trial evidence was adduced from which the jury could have concluded that the killing was in perpetration of any one of such offenses. The court instructed upon other possibilities which conceivably found some support in the evidence, such as the theories advanced by the defendants that the killing was the result of self-defense on their part or of an accident. Thus, when the majority conclude that the trial court erred in such instructions, before reversing the convictions of second degree murder they must comply with the constitutional mandate and decide ‘ ‘ after an examination of the entire cause, including the evidence” (Cal. Const., art. VI, § 4½) that “the error complained of has resulted in a miscarriage of justice. ’ ’
The majority eschew this test, asserting only that “the erroneous instruction caused prejudice to defendants” (ante, *462p. 458) and that “We cannot say that in the absence of the erroneous instruction it is not reasonably probable that the jury could have concluded that the argument with [the victim] led to a ‘sudden quarrel’ which culminated in his death.” (Ante, p. 459.)
The majority acknowledge “the evidence clearly showed that defendants were seeking methedrine” but they assert “it did not at all definitely disclose the events that preceded the stabbing. No witness testified to the occurrences before the knifing.” (Ante, p. 459.) I submit that it was for the jury to determine whether the evidence definitely disclosed what happened before the stabbing. Certainly, there was direct testimony from eyewitnesses which when weighed with the testimony of the defendants was ample to sustain the verdict of the jury.
A review of the evidence shows that defendants conspired in advance to obtain methedrine from their victim and when he resisted the deal they offered him they jointly assaulted him in such a wanton and brutal manner as to result in his death. Both Williams and Hendrix were physically larger and heavier than Mack. So vicious was their assault upon him as to cause bystanders to intercede urging the victim to give defendants whatever it was they were demanding of him. One woman spectator, Rose Johnson, screamed at defendants to let him alone that “You are going to kill him.” When her repeated screams failed to stop the assault she called to a woman in the hotel at the place where the fight was in progress, a Mrs. Terry Ritchie, “There is [sic] two hypes down here killing another one. ’ ’ Mrs. Ritchie, hearing the screams, looked down from her window and observed that the defendants were standing on either side of their victim who was crouched over and “looked like he was helpless” and that she saw a “knife come out like that in a thrust with the blood dripping from it. ... ” She telephoned the police. She stated she heard one man say during the fight, “Why don’t you give us the stuff, man! We don’t want to kill you.”
Another witness testified to hearing the victim say after having been downed on the sidewalk between his assailants, ‘ ‘ I will give it to you. ’ ’
During the fighting one of the defendants plunged his knife in the victim’s heart. With the victim dying at their feet, these defendants rifled his pockets, accomplished their objective of obtaining some ampules of methedrine and fled the scene.
*463It is not difficult to understand the jury's rejection of the defendants’ claim that the killing was the result of the exercise of their right of self-defense, although neither would admit to intentionally striking the death blow, since even according to a defense witness the victim, although quarrelsome and irritable since his illness, was in such weakened condition that he needed the witness’ assistance, from time to time, in mounting the stairs of his abode.
Defendant Williams corroborated much of the testimony of the eyewitnesses. He acknowledged that Bose Johnson, during the scuffle, urged the victim to give Hendrix “anything if you owe it to him" and later to scream to Mrs. Bitchie to “come down here, they are down here robbing a man. There is two hypes down here-—there was two hypes down here robbing a man. ’' He also testified that during the scuffle a further bystander, one Gilmore, interceded to urge the victim “if you owe the fellow anything why don’t you pay him."
A city fireman, who came upon the scene, testified that as the victim sank to the sidewalk he saw defendant Williams kick him and that defendants then walked to their car and left the scene.
These brief references to testimony in the record indicate an abundance of evidence to sustain a conviction of first degree murder under the felony murder rule (Pen. Code, § 189—murder committed during the perpetration of a robbery).
The evidence overwhelmingly sustains the conclusion that defendants’ conduct was unprovoked. Their acts disclosed “an abandoned and malignant heart," supporting the conclusion that the killing was malicious and thus constituted murder of the second degree. (People v. Jones, 215 Cal.App. 2d 341, 347 [30 Cal.Rptr. 280].) Likewise, the evidence warranted the instruction that the killing occurred in the course of an assault with a deadly weapon—both defendants having admitted that they pulled out their knives during the fight— thus constituting murder in the second degree and fully warranting the instruction given by the judge on this subject.
There remains only the question of error with respect to the judge’s references to a killing which is the result of a conspiracy to obtain methedrine. I respectfully submit that if this constituted error it was hyperteehnical and miniscule when weighed on the scales required of us under the California Constitution (art. VI, § 4½).
I submit further that the leniency of the jury in fixing the *464crime at a lesser degree than warranted should not be used as a basis for conjecture that conceivably they might have gone even further and found the offense to be voluntary manslaughter but for the allegedly erroneous instruction on conspiracy. I respectfully submit that a review of the evidence precludes the conclusion that there was a miscarriage of justice. Furthermore, under the test of People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243], a review of the entire transcript indicates it is not reasonably probable that a result more favorable to the defendants would have been reached had the errors complained of not occurred.
McComb, J., and Schauer, J.,* concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.