I concur in the judgment because of errors of commission. In People v. Silver (1940), 16 Cal.2d 714, 722 [108 P.2d 4], where the defendant had been charged with murder and convicted of manslaughter, the trial court had given instructions on self-defense, although the defendant had made no claim that he had acted in defense of self. Our Supreme Court, referring to these instructions, stated (p. 722): “We are of the opinion that the instructions were erroneously given. When the charge to the jury, though a correct statement of legal principles, is extended beyond such limitations so as to cover an assumed issue which finds no *166support in the evidence it constitutes error. (People v. Savinovich, 59 Cal.App. 240, 244 [210 P. 526].) ” Later in its opinion (p. 723) the Supreme Court stated: “Where errors in instructions occur, the question always arises as to whether or not they are prejudicial. Here it may be said that where the proof of a defendant’s guilt is clear, and no extenuating circumstances appear, such errors may not be prejudicial. But where a case, such as the one at bar, is what may be termed a ‘close’ case, and where the erroneous instructions concern matters vital to the defense of the defendant, and may have resulted in a miscarriage of justice, we are of the opinion that such errors must be regarded as prejudicial and should result in a new trial for the defendant.”
As appears clearly from the majority opinion, under the facts of this case it was error to give the lengthy, philosophical, instruction distinguishing manslaughter from murder and dealing so extensively with involuntary manslaughter. It was error to give the instruction applicable only to a defendant who had designedly sought a quarrel. It was error to give the anachronistic instruction involving “mortal” combat. The case against the defendant was a close one, bringing it within the principle expressed in the quotations from the Silver case.
The judgment should be reversed, therefore, because of the errors committed in giving the inappropriate instructions. I find no error to exist, however, in the trial court's failure to give the first of the three instructions referred to in the majority opinion, looked at in the order in which they are discussed, for it is an incorrect statement of a principle of law which was adequately covered by other instructions which were given. Had it been given the jury would have been told: “If you find from the evidence in this case that the evidence is not inconsistent with defendant’s innocence, then she is entitled to an acquittal at your hands.” The instruction considered in the case of People v. McClain (1931), 115 Cal.App. 505, 510 [1 P.2d 1085], contained no such erroneous passage. Where a requested instruction contains an erroneous statement it is not error for the trial court to refuse to give it as requested and it is under no duty to correct it and give it as modified (People v. Megladdery (1940), 40 Cal.App.2d 643, 653 [105 P.2d 385]; People v. Housman (1941), 44 Cal.App.2d 619, 628 [112 P.2d 944]), unless, of course, it deals with a subject concerning which it is the *167court’s duty, in the absence of any request, itself to frame and give an instruction.
Of greater importance, the principle which the first half of the rejected instruction indicates was its subject matter, was adequately covered by other instructions which were given. We note this one which was given: “If the evidence in this case, is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant’s innocence, and reject that which points to his guilt.
“You will notice that, in this instruction, this rule of law is made applicable to cases in which there are two opposing interpretations, each of which appears to you to be reasonable.
“This rule of law does not apply in a case where there are two opposing constructions sought to be placed upon the evidence, one of which appears to you to be reasonable and the other to you appears to be unreasonable.
“In the latter case it would be your duty, under the law, to adopt the reasonable construction and reject the one which, in your judgment, appears to be unreasonable.”
It is true that this instruction is not limited to circumstantial evidence, but “the greater includes the less,” and has judicial approval. In People v. Holden (1910), 13 Cal. App. 354 [109 P.2d 495], an instruction numbered 20 had been requested but not given. It is unnecessary to quote it fully; its theme is discoverable from its concluding sentence: “No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, but the facts must be incompatible with innocence, incapable of explanation upon any other reasonable hypothesis than that of guilt.” The appellate court made this comment upon the trial court’s refusal to give it (p. 359) •. “Instruction 20, asked by defendant and refused by the court, correctly stated the law as to circumstantial evidence, but we do not think that the defendant was prejudiced because not given. They were many times and in various forms told that they must be guided wholly by the evidence and such instructions embraced all the evidence, direct and circumstantial. Where the ease rests entirely or chiefly upon circumstantial evidence, it *168is desirable that some direction be given the jury as to the necessity for establishing each fact, beyond a reasonable doubt, which is essential to complete the chain of circumstances tending to establish the crime charged. But we are not prepared to say that a refusal to give such an instruction would necessarily be prejudicial error, for the law makes all competent evidence admissible, whether direct or circumstantial, and leaves the jury to determine its relative weight in each case. When, therefore, full instructions were given that the jury must be guided entirely by the evidence, and must be convinced by it beyond a reasonable doubt, the instruction goes to both classes of evidence, and it must be assumed" that the jury will so apply it.”
The trial court, furthermore, gave the instruction on presumption of innocence and reasonable doubt in the language of section 1096, Penal Code. This, our Supreme Court has said, sufficiently covered the subject we are now discussing. In People v. Van Cleave (1929), 208 Cal. 295 [280 P. 983], this instruction was one of five requested but not given:
“If the evidence relating to any or all the circumstances in this case is, in view of all the evidence, susceptible of two interpretations, one of which would point to the defendant’s guilt and the other would admit of his innocence, then it is your duty in considering such evidence to adopt that interpretation which will admit of the defendant’s innocence and reject that which would point to his guilt.” In its opinion, the Supreme Court stated (p. 301) : “Appellant asked the trial judge to give five instructions each of which, he says, was designed to inform the jury ‘that conviction on circumstantial evidence must exclude any and every reasonable hypothesis of innocence based on the adduced facts,’ and each of them was refused. We think the proffered instructions, although they were differently phrased, related only to the question of reasonable doubt, and the judge instructed the jury amply upon that subject. The requested instructions were, therefore, unnecessary.”
Because it may be of moment on a retrial of this case I think another matter should be spoken of. The actual conflict in the evidence in this case lies between defendant’s direct evidence and the mixed direct and indirect evidence of Mrs. Dempsey. If the latter is to be believed the defendant stated, in effect, that she was going to kill Dempsey and then proceeded to do so. This testimony would not prove man*169slaughter, but murder; yet it would be evidence upon which a conviction of manslaughter might rest. (People v. McFarlane (1903), 138 Cal. 481, 482-487 [71 P. 568, 72 P. 48, 61 L.R.A. 245]; People v. Huntington (1908), 8 Cal.App. 612, 614-620 [97 P. 760].) By filing an amended information charging manslaughter, the People have made no admission which precludes them from proving that the defendant murdered Dempsey, even though it be held that she cannot be convicted of a higher homicide than manslaughter.
A petition for a rehearing was denied March 13, 1944, and respondent’s petition for a hearing by the Supreme Court was denied March 30, 1944.