I dissent. The provision “if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed” (Pen. Code, sec. 1181, subd. 6; Stats. 1927, p. 1037) was enacted, as noted in People v. Kelley, 208 Cal. 387 [281 P. 609] at page 392, to prevent a recurrence of the action taken in People v. Nagy, 199 Cal. 235 *372[248 P. 906], wherein the evidence proved arson in the second degree .rather than the first, which necessitated a reversal and retrial. The first case presented to the Supreme Court involving the amendment (Pen. Code, sec. 1181, subd. 6) in which a modification was ordered was People v. Kelley, supra. In .that case at page 392 the court, realizing the serious effect of applying “judicial commutation” (concurring opinion by Mr. Justice Shenk in People v. French, 12 Cal.2d 720 [87 P.2d 1014] at p. 776), said: “We have approached the consideration of this new duty with a great deal of hesitation, not only because the duty is one not to be assumed lightly, but also because the amendment to the code section marks a complete departure in our criminal jurisprudence, and one which tin first impression seems a startling innovation in our procedure. ... we are convinced that, but for the miserable circumstances under which the crime was committed, and which no doubt outraged the moral sense of the people of the community in which it was committed, including the jurors, a verdict of' murder would not, in all probability, have been rendered.”
The majority opinion seeks to use the latter part of the quotation as authority to reduce the judgment of conviction to “a lesser crime included therein.” (Sec. 1181.) If it was the intention of the court in the Kelley case to adopt the rule that a judgment in a criminal case should be reduced if it appeared to a reviewing court that the degree of the crime “in all probability” was fixed as a result of the “miserable circumstances” surrounding the commission of the offense, then the court was trifling and toying not only with the constitutional rights of the People of the State of California but also of the defendant in that case. The court had no such intention as the decision is certain and plain in its holding that malice and premeditation in the commission of the offense were lacking and' that there was no prejudicial error appearing. in the record. At page 393 the court said: “No. express malice was shown, for there was not manifested a deliberate, or any, intention to unlawfully take the life of a fellow creature. . . . Appellant was properly found guilty, on competent evidence, of a most serious offense, and the errors complained of did not, in our judgment, prejudicially contribute toward bringing about the finding that he killed Mrs. Melius. No miscarriage of justice, therefore, resulted, except that, as *373a matter of law, the jury improperly fixed the degree of the crime and imposed the penalty therefor.”
In the present ease if prejudicial error appears defendant is entitled to a reversal of the judgment. If there is error but not prejudicial this court is prohibited from entering an order of reversal. In People v. Cowan, 38 Cal.App.2d 231 [101 P.2d 125, 135], at page 246, the court held: “There are errors of law in the record. In accordance with the mandate of section 4% of article VI of the Constitution, we have studied the entire reporter’s transcript and are left with the firm opinion of the guilt of the defendants and that no injustice has been done to them except in fixing the degree of their crimes. Therefore, under section 4% of article VI' of the Constitution, we cannot reverse the judgment.”
The majority opinion holds that certain instructions might well have been given but throughout the opinion there is not one statement that there was prejudicial error in the trial of appellant and the majority opinion expressly states “we find no reversible error in the rulings on the admissibility of evidence, or in the conduct of the assistant district attorney.” The modification of the judgment by reduction of the offense is based upon People v. Kelley, supra (previously referred to); People v. Howard, 211 Cal. 322 [295 P. 333, 71 A.L.R. 1385] ; People v. La Fleur, 42 Cal.App.2d 50 [108 P.2d 99], and People v. Castro, 37 Cal.App.2d 311 [99 P.2d 374], and the statement that “in the light of all the surround^ing circumstances” the evidence establishes only manslaughter.
In the Howard case the court entertained a doubt also “shared by the prosecution” as to proof of murder in the first degree. It must be assumed that in that case the court concluded that murder in the first degree had not been provén to a moral certainty and beyond a reasonable doubt. Certainly it was not intended to hold that a possible or imaginary doubt by a reviewing court would justify a modification. In People v. Wells, 10 Cal.2d 610 [76 P.2d 493], in discussing the word “doubt” as used in the Howard case, at page 627 the court said, “it should be made clear that the ‘doubt,’ if any, like that universally required of the jury on the trial of a criminal action, should be not merely fanciful or imaginary] but should be reasonable, real and substantial. ’ ’ In the Howard case at page 329 the court said, “there' is a dearth of evidence tending to show the conditions as they existed at the *374time of the homicide, and from which it might reasonably be held that the murder w.as, in fact, wilful, premeditated and intentional. In this regard, the state failed to satisfy the burden of proof. ’ ’ In the present case there is a mass of evidence showing preparation and intent. In the La Fleur case after reviewing the record the court simply held the evidence was sufficient to support a verdict of second degree murder but insufficient to justify a verdict in the first degree. In the Castro case the judgment was reduced to manslaughter.
Whether the evidence “falls short of the modicum required for a conviction of murder in the first degree” (People v. Castro, supra, at p. 315) in proof of premeditation, etc., is a question that should be approached by a reviewing court “with a great deal of hesitation.” (People v. Kelley, supra, at p. 392.) In People v. French, supra, at page 775, the test is set forth as follows: “The court has no power where the defendant is convicted of murder of the first degree, in cases where the jury has exercised the discretion imposed in it, to substitute its discretion for that of the jury as to the extent of punishment to be imposed. In cases where the evidence shows that the homicide was committed with deliberation, premeditation and malice aforethought, the crime is murder of the first degree with absolute power in the jury to determine the penalty. That there is evidence to sustain the jury’s finding cannot be questioned. That being so, this court is powerless to interfere with the exercise of the jury’s discretion.” (See People v. Greig, 14 Cal.2d 548 [95 P.2d 936].)
. In a murder case if there is evidence to justify the finding of the jury that the accused knew what he was doing when he took the life of his fellow man the determination of the degree is a question of fact for the jury and not for a reviewing court. (People v. Ross, 34 Cal.App.2d 574 [93 P.2d 1019].) If the act be preceded by and be the result of a concurrence of will, deliberation and intent the crime of murder in the first degree is proved. (People v. Ross, supra.)
In the present case the following facts appear: The killing was not committed in the commission of an unlawful act, not amounting to felony or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection and was not the result of a sudden quarrel or heat of passion. (Pen. Code, sec. 192, subds. 1 and 2.) The subdivision relating to the lawful and unlaw*375ful act may be considered only upon the theory that appellant believed that the deceased was about to break into her apartment and inflict violence. The facts, as related in the majority opinion, demonstrate the contrary. When shot by appellant the deceased was standing downstairs without attempting approach toward appellant. The killing was not the result of a sudden quarrel or heat of passion, but rather the culmination of a series of quarrels in which sudden heat of passion played no part as demonstrated by the evidence.
The majority opinion, quoting evidence given by the defendant, or seemingly in her favor, which must have been disbelieved or discountenanced by the jury to arrive at the verdict, evidently reaches the conclusion that appellant and her witnesses were telling the truth, but frankly admits that the jury accepted the version of the shooting given by the wife of the deceased and then states that such evidence “in our opinion ... it is legally sufficient to establish that the killing was unlawful.” If the wife’s version is legally sufficient, then acceptance of appellant’s version is a substitution by the reviewing court of its views and conclusion in place of the conclusion of the jury.
The majority opinion holds that in light of all the “surrounding cricumstances” the evidence establishes only the “degree of crime” of manslaughter. Accepting this view in the majority opinion that the evidence establishes that the killing was unlawful but denying that in light of all the circumstances the unlawful killing established only the offense of manslaughter, I note evidence which appears in the record positively evidencing the crime as murder of the first degree.
The killing was not the result of a sudden quarrel but rather of repeated misunderstandings which ripened into quarrels primarily over some noise that emanated from one of the flats. Appellant occupied the upper, and decedent, with his family, the lower flat of premises on Grove Street. The backyard was divided by a fence five feet high.
Mr. Doyen was born in Paris, and his wife in Switzerland. When the Doyens, parents of an infant, found it necessary to use a washing machine appellant ran a vacuum cleaner over an uncarpeted floor. At times, when a dog barked or the baby cried, appellant turned on the radio to loud blasting sounds. Appellant threatened to kill the small cocker spaniel. Thereafter, whenever the dog disturbed appellant the Doyens *376removed the dog to the flat. The wash or clothes pins occasionally fell over the fence and Mr. Doyen would jump the fence to retrieve such articles. Appellant complained to the landlord that if the Doyens were not evicted “she would do something desperate.” The landlord advised appellant’s nephew that appellant was high strung and cranky and that she should not live near other people. At the trial witnesses were produced to prove the reputation of the Doyens for peace and quiet. Appellant, within a period of approximately four years, occupied seven houses or flats. There is evidence that in other places similar disturbances occurred particularly if the adjoining flat owners happened to be of foreign birth. Appellant’s favorite appellations in addressing the Doyens was “dirty foreigners” and “sons of bitches.” Appellant’s conduct toward the Doyens generally was indicative of not only a'malicious, but a vicious disposition.
On the day of the killing, Doyen, in the act of sweeping, slammed a door. Appellant saw Doyen from her front bedroom window. Doyen approached a door and knocked with the use of a handle of a broom. Appellant, after turning on the radio, deliberately walked approximately sixty feet, obtained a loaded deadly weapon, and returned, opened.her bedroom window, and, after a short altercation with Doyen, who was down below, called Doyen a “dirty son of a bitch.” “I mean you down there,” and said, “I am going to kill you.” Thereafter, the shot was fired that caused the death of Doyen. Appellant now claims that she shot to scare, but the aim was true at an angle of 45 degrees, the bullet passing through the right chest, going through a portion of the right lung and into, the heart without a deflection. After the shooting she closed the window and dressed. From this evidence and the background of ill will of appellant toward Doyen in the face of the admission of the killing the jury was certainly justified in finding “preparation,” “premeditation” and “wilful intent.” (People v. Wells, supra,; People v. Campanella, 46 Cal.App.2d 697 [116 P.2d 633].) The decision of the jury should be final. (People v. Emerson, 130 Cal. 562 [62 P. 1069].)
Peace officers arrived shortly after the shooting. Appellant was still holding the gun. After being disarmed, though she offered no resistance, she was asked why she used the gun. She replied: “I am not going to let anybody tell me what to *377do or shove me around.” When informed that she had shot Doyen, she was cool and calm and evidenced no surprise. Later when asked to relate the happenings she said: “Well, I shot that man that lives down stairs.” Subsequently she referred to the fact that there was some “irritation”; that the Doyens kept in the alley-way a vicious dog which tore up appellant’s plants. When confronted by the widow who identified appellant as the woman who shot her husband appellant commented: “So what” and subsequently when her attention was called to the fact that “You have left that poor woman in there with three children,” replied, “Well, I don’t care, they are not going to call me any names.”
The evidence in its entirety indicates that appellant was possessed of an abandoned and malignant heart. There is no evidence of immediate provocation for the killing. Words of reproach never justify the use of a deadly weapon and do not warrant reduction from murder to manslaughter. (People v. Manzo, 9 Cal.2d 594 [72 P.2d 119].) The act was preceded by and was the result of a concurrence of will, deliberation and intent. Under such circumstances in amending section 1181 it is inconceivable to me that the Legislature intended that a reviewing court should interfere through “judicial commutation. ’ ’ This view was followed in the hereinafter cited cases.
In People v. Shaver, 7 Cal.2d 586 [61 P.2d 1170], the court said at pages 593, 594, 595 and 596:
‘ ‘ There is no principle of law making it obligatory upon the court or the jury to accept appellant’s version of the circumstances leading up to the killing. This principle is so well established that citation of authorities in support thereof becomes unnecessary. Evidently the jury refused to believe appellant’s statement of the reasons that prompted him to take his wife’s life. This was a question exclusively within their province to decide. Having decided the question adversely to appellant, this court is bound by their decision thereof as it is in the case of any other question of fact passed upon by the jury. . . . This evidence was sufficient to justify a verdict of murder in the first degree. (People v. Murphy, 1 Cal.2d 37 [32 P.2d 635], People v. McQuate, 2 Cal.2d 227, 233 [39 P.2d 408], and People v. Ottey, supra [5 Cal.2d 714 (56 P.2d 193)].) However, the case is made.much stronger against the appellant when we consider his own admissions that he killed *378his wife with his own hand, and immediately fled from the scene of the crime. The jury was perfectly justified in accepting those portions of the appellant’s statement which appeal to them while rejecting those that they did not believe. (People v. Murphy, 1 Cal.2d 37, 40 [32 P.2d 635].) With this evidence before us, we are not able to bring ourselves to the conclusion that the judgment against the appellant should be reduced to murder in the second degree.
‘ ‘ It is not necessary for us to discuss at any length the three cases relied upon by appellant in which there was a reduction of the judgment. The case of People v. Kelley, supra, has been given consideration in our opinion in the case of People v. Murphy, supra. The language used in the opinion in the Murphy case is quite pertinent to the instant case, the two cases having many points of similarity. The other two cases relied upon by appellant are People v. Howard, supra, and People v. Connors, supra [124 Cal.App. 216 (12 P.2d 43)]. In those eases the judgments were reduced from murder in the first degree to murder in the second degree for the reason that if the jury should reject the statement of the defendant as to the manner in which the deceased met death, then there would be a dearth of evidence tending to show the conditions as they existed at the time of the homicide from which it might be reasonably held that the murder was in fact wilful, premeditated, and intentional. No such condition exists in the present ease as we have shown that if we exclude the entire statement of the appellant, there is then sufficient evidence to show him guilty of murder in the first degree. The instant case is much like the ease of People v. McQuate, supra, where the two cases of People v. Howard and People v. Connors, supra, are discussed and distinguished from the McQuate case.” (People v. French, supra; People v. Greig, supra; People v. Murphy, 1 Cal.2d 37 [32 P.2d 635] ; People v. Ross, supra; People v. Campos, 10 Cal.App.2d 310 [52 P.2d 251]; People v. Chwistek, 134 Cal.App. 32 [24 P.2d 872]; People v. Masters, 133 Cal.App. 167 [23 P.2d 774]; People v. Green, 124 Cal.App. 709 [12 P.2d 541]; People v. McQuate, 2 Cal.2d 227 [39 P.2d 408]; People v. Madison, 3 Cal.2d 668 [46 P.2d 159]; People v. Fleming, 218 Cal. 300 [23 P.2d 28]; People v. Price, 207 Cal. 131 [277 P. 316].)
This judgment should be affirmed.