I dissent. The majority opinion reverses the judgment of conviction of second degree murder “solely on the ground that the trial court erred in giving a felony-*589murder instruction.” Under section 4½, article VI, of the California Constitution‘‘No judgment shall be set aside . . . on the ground of misdirection of the jury . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” I submit that here a miscarriage of justice did not result from any error in giving the instruction in view of the overwhelming evidence that defendant, motivated by mercenary greed, acted in conscious disregard for the life of 8-year-old Linda Epping when he induced her parents to cancel the scheduled cancer operation and place her under his care, thereby shortening her life.
The majority eschew the test in article VI, section 4½, of the Constitution by asserting that the instruction ‘‘caused defendant prejudice because it removed from the jury the issue of malice” and that ‘‘The denial of defendant’s right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4½.”
Under the instructions given, the jury was told that malice aforethought was a necessary element of murder, and the instructions permitted the jury to find such malice not only on the basis of the felony-murder rule but also if the killing was committed under circumstances that show an abandoned and malignant heart. To be so committed the defendant must have an intent with conscious disregard for life to commit acts likely to kill. (People v. Washington, 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130] ; see People v. Thomas, 41 Cal.2d 470, 475 [261 P.2d 1] [concurring opinion].)
There was ample evidence that defendant, a chiropractor, intended to induce Linda ⅛ parents to cancel the operation for her fast-growing eye cancer and place her under his care. Motive was shown by evidence that he was then behind in his rent and that he charged Linda’s parents $500 in advance for her treatment and made an additional profit exceeding $100 by selling pills for her at a 100 percent mark-up.
That defendant was well aware that canceling the surgery and placing the child under his care would endanger her life is apparent from his own testimony. He testified as follows: Before Linda was removed from the hospital he knew the form of cancer she had, and, having taken several semesters of pathology at school, he recognized that her condition was “very, very dangerous.” He recalled having read that “early exenteration of the orbit offers the only hope of survival, and *590that a slender one. ’ ’ He stated he was aware that Linda ⅛ case required medical attention, which he was not going to give her. Upon being told that the doctors at UCLA planned to perform surgery on her, he told her mother to listen to the doctors. Later, when Linda’s mother informed him that she had removed Linda from the hospital, he told her she had made “a very, very grave mistake” and should return Linda to the hospital. Thereafter each time Linda was brought to him for treatment he stated that she should have surgery. He graduated from a college of chiropractic in 1958 and testified that he knew he could not cure cancer, and that if he had reason to believe that one of his patients had a malignant tumor he would refer the patient to a surgeon.
In view of the foregoing testimony by defendant any possibility the jury would have concluded, as suggested by the majority, that he believed the treatment he proposed to give would be as efficacious as the scheduled surgery in prolonging her life and thus that he did not act with conscious disregard for her life is so remote as to be virtually nonexistent.
The majority note that defendant testified that he understood that Linda ’s cancer was incurable, but this is not inconsistent with his testimony indicating his belief that surgery offered the best chance of prolonging her life. Moreover, his testimony relating to whether her form of cancer was curable, when the testimony is taken as a whole, merely indicated that he believed that such cancer was ordinarily incurable but that there was a slight chance of survival if there was early exen-teration of the orbit.
The majority opinion is misleading in stating that “defendant testified that he . . . understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death.” Defendant testified that he had read that “after removal there is wasting and death due to metastasis . . . ,” i.e. a transfer of the disease from one part of the body to another. The quoted matter which defendant said he had read may mean merely that removal does not always prevent death, not that removal might 11 stimulate ’ ’ the spread of the disease and thus hasten death.
Defendant was indeed fortunate that he was not tried and convicted of first degree murder for Linda’s death. Even if it be assumed that it was error to give the felony-murder instruction, the record shows that it is not reasonably probable that a result more favorable to defendant would have been reached had the instruction not been given. (People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243].) Since the giving of the *591instruction did not result in a miscarriage of justice, I would affirm tbe judgment of conviction under the mandate of section 4½, article YI, of the California Constitution.
McComb, J., and Schauer, J.,* concurred.