I concur in the affirmance of the judgment of . conviction and the order denying a new trial as to the second count, which charged defendant with an assault with intent to commit the murder of Alvin McSwain. I dissent, however, from the reversal of the judgment and the order denying a new trial as to the first count, which charged defendant with the murder of Wilbur McSwain.
The majority opinion bases the reversal of the judgment as to the first count upon alleged prejudicial error (1) in refusing to give an instruction upon involuntary manslaughter and (2) in giving and refusing to give certain instructions relating to first and second degree murder. In my opinion, a review of the record, including the evidence, shows that defendant was accorded a fair trial, and that the trial court committed no prejudical error which would warrant a reversal of the judgment as to either count.
It must be remembered that since' 1914, a reversal may not be based upon mere error in instructing the jury “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error com*780plained of has resulted in a miscarriage of justice.” (Const., art. VI, § 4½.) As was said in People v. Watts, 198 Cal. 776, at page 793 [247 P. 884]: “Since the adoption of section 4½ it no longer is the rule in this state that injury is presumed from error. Before the reversal of a judgment of conviction may be had it must affirmatively appear to the satisfaction of this court, after an examination of the entire cause, including the evidence, that the accused may well have been substantially injured by the error of which he complains."
The cited constitutional provision places a heavy duty upon this court, in that our task does not end with the determination that some error may have crept into the lengthy proceedings in the trial court. If this court determines that any error occurred, it is then confronted with the equally important task of weighing the possible prejudice of that error in the light of the situation shown by the entire record. The duty thus cast upon this court is a grave one, and more particularly in a case where a human life is at stake; but a review of the record here convinces me that the only error committed was in the failure of the trial court to give an instruction on involuntary manslaughter, and such error was not prejudicial for the reasons hereinafter set forth.
The first observation to be made, after reviewing the entire record, is that the overwhelming evidence points unerringly to the commission by defendant of the cold-blooded, carefully planned, and premeditated murder of Wilbur MeSwain; and similarly, to the commission of a deliberate assault with the intent to murder Alvin MeSwain. Numerous witnesses testified to the threats to “kill the whole family” made by defendant long before the crimes were committed, as well as to like threats made immediately prior to the actual commission of the offenses. The evidence covering the admitted acts of defendant in the long period of time intervening between the first threats and the subsequent firing of several shots at his victims, and his admitted acts at the time of the shooting, furnishes corroboration to the point of demonstration of defendant’s deliberate plan and purpose to kill his threatened victims.
As against this overwhelming testimony indicating defendant’s guilt of the offenses of which he stands convicted, the record discloses that defendant gave conflicting versions of what occurred. To the officers following his arrest, he admitted that all the shots were fired intentionally but “just to scare the people.” Before the jury, he testified that the *781fatal shot which killed Wilbur McSwain was fired accidentally rather than intentionally, and that while he intentionally aimed the other shots at the car, he did not intend to kill or injure anyone.
Turning now to the claimed error in giving and refusing instructions, attention will first be directed to the instructions relating to murder.
The Instructions Relating to Murder
It is elementary that the instructions must be considered as a whole, and that “Whether a jury has been correctly instructed is not to be determined from a consideration of parts of an instruction or from particular instructions, but from the entire charge of the court. ’ ’ (8 Cal.Jur. 631, § 607 and cases cited.) It is therefore clear that error may not be predicated upon a single sentence or paragraph of an instruction when read out of context. (People v. Frasier, 88 Cal.App. 2d 99, 105 [198 P.2d 325].) Only a small portion of the instructions relating to murder is quoted in the majority opinion, and while it appears unnecessary to set forth in its entirety the trial court’s very extensive charge on this subject, sufficient should be quoted to show that error may not be predicated upon the portion criticized by the majority.
The trial court fully instructed the jury upon the statutory definition of murder (Pen. Code, § 187) and the degrees of murder (Pen. Code, § 189), and expanded upon those definitions in the following manner;
“All murder which is perpetrated by any kind of wilful, deliberate and premeditated killing is murder of the first degree.
"To constitute this kind and degree of homicide the killing must be accompanied by a clear, deliberate intent to take life. The intent to kill must be the result of deliberation and must have been formed upon a pre-existing reflection and not under a heat of passion or other condition such as precludes the idea of deliberation.
“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 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 *782other or how quickly or tardily they are followed by the act of killing.
“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.
“Murder of the second degree must be distinguished not only from murder of the first degree, on the one hand, but from manslaughter, on the other.
“If the unlawful killing of a human being is done with malice aforethought, but without deliberation and premeditation, that is, without the wilful, deliberate and premeditated intent to take life which is an essential element of first degree murder, and is not perpetrated by means of poison, or lying in wait, or torture, and is not committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem, then the offense is murder in the second degree. In practical application this means that the unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree. ”
Considering the above-mentioned instructions together, it is clear that the trial court was endeavoring to follow the rules enunciated in the cases upon which the majority relies (People v. Bender, 27 Cal.2d 164 [163 P.2d 8]; People v. Valentine, 28 Cal.2d 121 [169 P.2d 1]; People v. Honeycutt, 29 Cal.2d 52 [172 P.2d 698]), and I am satisfied that the charge as a whole fully and fairly advised the jury concerning the distinction between first and second degree murder.
The challenged instructions are far different from the instructions which were condemned in the cases last cited. The real vice of such condemned instructions, as pointed out by this court in People v. Bender, supra, 27 Cal.2d 164, at page *783184, did not rest in the giving of the instruction that there need be “no appreciable space of time between the intention to kill and the act of killing. ’ ’ This instruction was declared to be “abstractly a correct statement of the law” (p. 182), but it was further said that it should not be given to a jury “without explanation” and that it was “misleading when read in the context in which it was used” (pp. 182-183). In that case, the above declaration was immediately followed in the same sentence by the words “they may be as instantaneous as successive thoughts of the mind” and was thereafter followed by instructions that “A man may do a thing willfully, deliberately and intentionally from a moment’s reflection as well as after pondering over the subject for a month or a year”; and that “He can premeditate, that is, think before doing the act, the moment he conceives the purpose, as well as if the act were the result of long preconcert or preparation” (p. 182). It was stated on page 183 of the Bender case that the effect of this combination of instructions was to eliminate the requirement of any “deliberation or premeditation in forming the intent” to kill or “deliberation and premeditation between the intent and act of killing.” As was said in People v. Valentine, supra, 28 Cal.2d 121, at page 134: “As held in People v. Bender (1945), supra, 27 Cal.2d 164, 182-185, this combination of instructions, taken as a whole, substantially deletes the only difference, in this type of case, between first and second degree murder.” (Emphasis added.)
It is clear that we have before us no such “combination of instructions” as was condemned in the cited cases. The trial court here adopted the substance of the suggested instructions set forth on pages 184 and 185 of the Bender ease, and gave due explanation of, and proper emphasis to, the real meaning of and necessity for deliberation and premeditation. If the majority of this court has determined to go further and to declare that “considerable space of time” must be devoted to deliberation and premeditation in forming the intent to kill or between the intent to kill and the act of killing, then it would be proper for this court to so declare for the guidance of the bench and bar. The word “considerable” conveys the meaning of “rather large in extent” (Webster’s New Inter. Dict., 2d ed.), and any such declaration would in effect repudiate the rule contained in this court’s suggested instruction that “Neither the statute nor the court undertakes to measure in units of time the length of the period *784during which the thought must be pondered before it can ripen into an intent which is truly deliberate and premeditated.” (People v. Bender, supra, 27 Cal.2d 164, 184-185.) I do not favor the repudiation of the quoted suggested instruction nor the extension of the rules set forth in the cited cases; and I am convinced that both reason and the cited cases support the conclusion that there was no error in this portion of the trial court’s charge dealing with the degrees of murder.
The Refusal to Instruct on Manslaughter
In considering this phase of the appeal, it is significant to note that the only point now argued by defendant is that the jury should have been instructed on voluntary manslaughter as “the jury should have had the right to determine whether or not the alleged murder was committed in the heat of passion. ’ ’ This is a complete abandonment of the claim made at the trial, which was that the defendant’s acts constituted no more than involuntary manslaughter. I therefore agree with the implication in the majority opinion that defendant was not entitled to an instruction on voluntary manslaughter as “he positively testified that he did not intend to kill or injure anyone.” Furthermore, I agree with the holding of the majority opinion that however fanciful and unworthy of belief defendant’s conflicting versions of the occurrences may appear to be, an instruction on involuntary manslaughter should have been given. It was therefore error to refuse to give such an instruction, but the question remains as to whether there is any likelihood that the jury would have rendered a different verdict if instructions on involuntary manslaughter had been given; or in other words, whether the error was prejudicial.
It will be recalled that defendant was charged with two offenses: (1) the murder of Wilbur McSwain and (2) assault with intent to commit the, murder of Alvin McSwain. Under the evidence and instructions, no conviction could have been had on either of the particular offenses charged unless the jury found that defendant had a specific intent to kill the victim. Defendant’s claim on the trial was that he never intended to kill or injure either of his victims, and this claim was based upon the evidence recited in the majority opinion and above summarized.
With respect to the first count, the jury was further instructed: “Thus in the crime of murder [with] which the defendant is accused in this case in Count One of the informa*785tion, the specific intent to kill is a necessary element of the crime.”
With respect to the second count, the jury was instructed in part:
“In the crime of assault with intent to commit murder, there must exist in the mind of the perpetrator the specific, preconceived intent to kill a human being, and a person may not be convicted of such an offense if that specific intent is not established by the evidence.
“When the information charges that the defendant committed an assault with a deadly weapon with intent to commit murder, if the jury should find that he committed the assault <with a deadly weapon but that he did not do so with a specific, preconceived intent to kill, the defendant may be found guilty only of the lesser offense, namely, assault with a deadly weapon. ’ ’
The jury was given the customary instructions regarding the presumption of innocence, the burden of proof, and its duty to acquit the defendant upon any charge unless his guilt had been satisfactorily proved beyond a reasonable doubt. It was given a further instruction with respect to reasonable doubt and the degrees of murder, reading: “When upon the trial of a charge of murder, the jury is convinced beyond a reasonable doubt that the crime of murder has been committed by a defendant, but has a reasonable doubt whether such murder was of the first or of the second degree, the jury must give to such defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.”
The jury was further instructed upon its duty to fix the punishment in the event that it found defendant guilty of first degree murder. It therefore appears that the jury was otherwise fully and fairly instructed upon every phase of the case.
Under the given instructions the jury brought in a verdict finding defendant guilty on count one of first degree murder, and fixing the punishment at death; and a further verdict finding defendant guilty on count two of assault with intent to commit murder. It seems obvious that had the jury placed the slightest credence in either of defendant’s conflicting versions concerning his claimed unintentional shooting of his victims, or even had the jury any reasonable doubt concerning his intentions, it would not have brought in a verdict finding defendant guilty of first degree murder and fixing the penalty *786at death upon the first count; and that it would not have brought in a verdict of assault with intent to commit murder upon the second count. The fact that the jury brought in a verdict finding defendant guilty of an offense higher than second degree murder on the first count, and that it likewise brought in a verdict finding defendant guilty of assault with intent to commit murder, rather than guilty of the included offense of assault with a deadly weapon, affirmatively shows that the jury rejected, in all material particulars, defendant’s conflicting stories concerning his unintentional shooting of his victims, and determined, as the overwhelming evidence showed, that his offenses were intentionally committed and were preceded by deliberation and premeditation.
The instant case is closely parallel to People v. Mitchell, 14 Cal.2d 237 [93 P.2d 121], where this court, in discussing possible prejudice in the failure to give a manslaughter instruction, said, at page 242: “If under the evidence and these instructions, the jury rendered a verdict calling for the death penalty, it is not reasonable to suppose that its verdict would have been different had the proposed instruction on manslaughter been given.” (See, also, People v. Driscoll, 53 Cal.App.2d 590, 595 [128 P.2d 382]; People v. Miller, 67 Cal.App. 674, 679 [228 P. 68].)
The conclusion that the judgment in this case should not be reversed finds support in the above-mentioned authorities and does not conflict with the decision in any of the cited cases. Those cases wherein judgments of conviction have been reversed for the failure or refusal to give instructions on an included offense are clearly distinguishable from the instant case, and are of two types. In the first type, the crime charged was not divided into degrees and under the, instructions, the jury was necessarily required to exonerate defendant entirely or to convict him of the offense charged. (People v. Comyns, 114 Cal. 107 [45 P. 1034]; People v. Demasters, 105 Cal. 669 [39 P. 35]; People v. Burns, 88 Cal.App.2d 867 [200 P.2d 134]; People v. Cicerelli, 123 Cal.App. 48 [10 P.2d 792]; People v. Mock Ming Fat, 82 Cal.App. 618 [256 P. 270]; People v. Stofer, 3 Cal.App. 416 [86 P. 734].) In that type of case, the jury might well conclude that a public offense had been committed and therefore be reluctant to exonerate the defendant. Plainly, the failure to instruct on the included offense might well prejudice the defendant. In the second type, the crime charged was divided into degrees and defendant was convicted of the lesser degree, and might well have been *787convicted of an included offense if proper instructions thereon had been given. (People v. Foss, 85 Cal.App. 269 [259 P. 123]; 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].) Not a single case has been cited, nor does independent research disclose any case where any court of this state has reversed a judgment of conviction where defendant had been convicted of the highest possible degree of a crime, divided into degrees, merely because the trial court failed or refused to give instructions on an included offense. The broad language employed in some of the cases cited in the majority opinion must be read in the light of the particular situations which were being considered by the courts.
Prom what has been said, it clearly appears that there is not the slightest possibility that the jury would have brought in a different verdict had an instruction on involuntary manslaughter been given. I therefore conclude that the error of the trial court in failing to give such instruction is precisely the type of error to which the constitutional provision was directed, and that it is our duty under the constitutional mandate to affirm the judgment of conviction of first degree murder.
I would therefore affirm the judgments of conviction and the orders denying the motions for new trial as to both counts.
Shenk, J., and Edmonds, J., concurred.
Respondent’s petition for a rehearing was denied March 29, 1951. Shenk, J., Edmonds, J., and Spence, J., voted for a rehearing.