I dissent.
Before discussing the problem of applying People v. Johnson (1968) 68 Cal.2d 646 [68 Cal.Rptr. 599, 441 P.2d 111] the instant facts, I feel compelled to point out that the he; say testimony in question should not have been admitted f any purpose, and thus the Johnson error should not ha' occurred. As we emphasized recently in People v. Sam (1969) ante, p. 194 [77 Cal.Rptr. 804, 454 P.2d 700], prior statements may be admitted under Evidence Code section 123 only if they are in fact inconsistent with trial testimony, such inconsistency appears from the record in this case.
The majority concede (in fn. 10) that Berta’s hearse statement was not inconsistent with her testimony on cros examination that she did not recall making the prior statement.1 This concession is compelled by Sam, which (at ] 210) makes it clear that a witness who has no present recolle tion of past events is not impeached, nor is testimony othe: wise inconsistent, which indicates at an earlier time and in different place he related the events.
The majority do find an inconsistency between Berta direct examination as a defense witness and her hearsay de( laration. I submit, however, that a line-by-line reading of he testimony (fn. 9) fails to support the majority’s suppositio: that she said the victim, Emily, was the aggressor. Bert merely testified she heard a glass break, that Gerry’s hair wa wet, that she “saw them struggling together,’’ that Gerr; asked for assistance, that Emily was “getting the best of th struggle,” that “they seemed to settle down,” and tha “Emily turned around and went out the door.” It is pun conjecture to conclude from the fact Emily was winning th< fight and Gerry asked for aid that Emily necessarily had beer *949ie original aggressor. Just as likely this could be, in the ords of Thomas-Hardy, “aggressive fancy working spells pon a mind o’erwrought.” Indeed, to the everlasting good jrtune of mankind, the brutes, bullies and aggressors of the peeies often miscalculate their prowess and do not prevail.
Finding no direct contrariety in terms between the prior tatement and the court testimony, the majority then fall back Lpon two cases decided more than 50 years ago to support heir thesis that the inconsistency may be related to a tenancy to contradict not merely the testimony but “any infer-nce to be deduced from .it.” This is strong medicine to use in ationalizing admission of hearsay testimony. Over the half century that has elapsed since Hanton v. Pacific Elec. Ry. Co. (1918) 178 Cal. 616 [174 P. 61] and Worley v. Spreckels Bros. Commercial Co. (1912) 163 Cal. 60 [124 P. 697] were lecided, the law of evidence in general has undergone considerable development, and the law governing prior inconsistent itatements in particular has assumed constitutional dimensions. It is disconcerting to see those outdated and dubious principles exhumed and given hew and undeserved vitality in. the majority opinion, especially since they add nothing to the reasoning or outcohie of the decision.
Regardless of the existence of an inconsistency, there was error under Johnson. The majority appear to have correctly assumed that the trial court — rightly or wrongly — did in fact admit Lillian Moreno’s testimony as a prior inconsistent statement, and did give some substantive effect to that testimony. Thus it is of no consequence to which testimony the court applied the prior statement as inconsistent, or whether an objection to the lack of inconsistency would properly have been sustained.2 If the testimony was admitted and considered by the trial court under section 1235, it is in that light we must review it. The fact that the testimony might have been inadmissible for any purpose does not justify or mitigate its improper and unconstitutional admission for substantive purposes under section 1235, and cannot alter the.conclusion that People v. Johnson applies. Thus it is totally unnecessary for us to search for an actual inconsistency, so long as the trial court acted on the assumption that an inconsistency existed.
*950But in any event tbe applicability of Johnson to this cat does not require a reversal of the judgment, for as we said i Johnson (at p. 660), “the erroneous admission of such statement as substantive evidence does not automatical! deprive the defendant of a fair trial, and the conviction wi be reversed only in those cases in which prejudice ensued. Applying the test of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824], I would find th use of the prior inconsistent statements here challenged to bl ‘ ‘ harmless beyond a reasonable doubt."
Manslaughter is the unlawful killing of a human -beinl without malice. (Pen. Code, § 192.) It is voluntary man! slaughter when the killing is ‘ ‘.upon a sudden quarrel or heal of passion.” (Pen. Code, §192, subd. 1.)
The legal guidelines which govern a determination whether a killing constitutes voluntary manslaughter hav been frequently delineated. (People v. Brubaker (1959) 53 Cal.2d 37, 44 [346 P.2d 8]; People v. Borchers (1958) 56 Cal.2d 321, 328 [325 P.2d 97].) In Borchers the court founc that the victim had roused the defendant “to a heat of ‘pas sion’ by a series of events over a considerable period of time . . .” The court noted that “passion” need not mear “rage” or “anger,” but it “may be any ‘Violent, intense high-wrought, or enthusiastic emotion.’ [Citations.]” The court then pointed out that “ ‘the fundamental of the inquiry [in determining whether a homicide is voluntary manslaughter] is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some pas-I sion — not necessarily fear and never, of course, the passion for revenge — to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’ ” The Borehers court found that the evidence “supports a finding that defendant killed in wild desperation induced by [the victim’s] long continued provoca-tory conduct.” (P. 329.)
Whether the defendant’s reason was obscured by a passion which would lead or compel an ordinary person of average disposition to act rashly and without due deliberation and reflection is a question of fact and is not to be ascertained de novo on appeal. The examination on appeal is limited to a determination of the legal adequacy of the evidence. If the circumstances properly justify the judgment, the opinion of a reviewing court that those circumstances might also reason*951ably be reconciled with the innocence of the defendant will not warrant interference with the factual determination of the trial court. (People v. Newland (1940) 15 Cal.2d 678, 681 [104 P.2d 778].) Here, upon ample evidence, the trial court rejected the theory of self-defense and found that the killing was not accidental. Even though from a different vantage point the evidence is susceptible of exculpatory inferences, we do not enjoy the privilege of substituting our interpretation for that reached by the trier of fact.
Contrary to the impression given by the majority opinion {ante, p. 935), there was little disparity in the size of the two women. The victim was about 5 feet 2 inches tall and weighed approximately 120 pounds; the defendant is approximately 5 feet 3 inches tall and weighs about 110 pounds. From its inception the unnatural relationship between the defendant and the victim was marked by violence. On at least three occasions defendant assaulted the victim with knives; in two of those episodes defendant cut an intervening party, and on the third occasion the victim was also cut. At still another time the defendant assaulted the victim with a hammer and on several occasions made threats to take the life of the victim or to “ get her. ’ ’
While the evidence also indicates the victim committed numerous assaults upon the defendant, employing weapons on occasions and using her hands or throwing objects at other times, the tumultuous history alone would suggest that the killing here qualified as manslaughter: it occurred “upon a sudden quarrel or heat of passion.” It is undoubtedly with the stormy relationship of the parties in mind that the prosecutor did not seek a conviction of murder but merely of manslaughter. The circumstances appear to justify no greater leniency.
The questioned testimony of Lillian Moreno related to whether the defendant broke a beer bottle and told the victim she “was going to get her with it.” It must be remembered, however, that the breaking of the beer bottle and the initial altercation between the parties took place earlier — the precise time span being unclear — than the ultimate fight and stabbing. There was a definite interlude between the two incidents and a cooling off period ensued; the victim turned her back and withdrew from the room in which the fight had taken place. Neither Berta’s testimony nor that of Lillian Moreno referred to the subsequent episode culminating in the death. *952Therefore, their testimony is of little value in assessing culpability for the later killing.
Indeed, if we rely entirely upon the defendant’s version of the events, the evidence of manslaughter is overwhelming. She admitted that she was tired and nervous at the time of the stabbing, that the victim’s aggressive and violent conduct preceding the stabbing had placed her in fear of the victim, that she was distraught over the fact that the victim was leaving her for another woman. The trial court could properly conclude from this combination of- weariness, nervousness, fear and jealousy that the defendant’s reason had been displaced by passion and that she stabbed the victim under circumstances justifying criminal responsibility.
The trial judge was not compelled by the disputable evidence to accept the defendant’s assertion of accident. The physical evidence alone strongly'rebuts the claim of an accidental killing: the nature of the weapon, a butcher knife with an eight-inch blade,' the severity of the wound, a six-inch penetration into the body of the victim; the force necessary to pierce the abdomen that deeply. And finally, the victim at no time had.a weapon in her possession. Thus even if the defendant was, in accordance with her contention, acting in self-defense, the trial court could properly conclude that the force used by the defendant far exceeded any amount reasonably necessary to defend herself.
In People v. Beach (1963) 212 Cal.App.2d 486 [28 Cal.Rptr. 62], there was substantial evidence that the victim husband had beaten the defendant wife that day, choked her, grabbed her by the hair and threw her into another room; she had marks on her neck, showing evidence of choking. Nevertheless, the reviewing court refused to substitute its judgment for that of the trier of fact and held that “the trial court could reasonably conclude that defendant was roused to a heat of ‘passion’ by the series of events transpiring before the fatal shooting. ’ ’ The evidence was held to support the finding by the trial court that defendant killed upon a sudden quarrel and heat of passion. This court denied a hearing.
Similarly, in People v. Welborn (1966) 242 Cal.App.2d 668, 672 [51 Cal.Rptr. 644], the evidence indicated the victim was intoxicated, ordered the defendant wife out of the house, arose from a chair and acted in a belligerent manner and on previous occasions had physically abused defendant. She was “frightened, nervous and tense,” and claimed she did not intend to fire .the gun at the victim. Nevertheless, the trier of *953fact found her guilty of voluntary manslaughter, the Court of Appeal affirmed the conviction, and a hearing was denied in this court.
Here, unlike Beach and Welborn in which a weak defendant took the life of an overbearing victim, the record indicates that the victim and the defendant frequently fought each other on a basis of physical equality. The defendant knew she could stand and fight it out with the victim because she had often done so. She won some battles and she lost some. Thus, .there is totally absent from the record any indication that the defendant was genuinely concerned for her life or that she reasonably feared the infliction of great bodily harm at the time of the stabbing. Since the victim was concededly unarmed, it seems abundantly clear that the amount of force used by the defendant in wielding a lethal weapon far exceeded whatever force might have been necessary at the time to defend herself.
In short, the. extrajudicial statement, even if it suggests that the-victim may not have been the'aggressor, was not a significant factor leading to the defendant’s conviction. On the strength of the properly admitted evidence, primarily the defendant’s own testimony, the trial court could find the defendant guilty regardless of who was the aggressor of the moment. The lethal weapon, the nature of the wound, the unarmed victim and the combative background of. these women were not conducive to a finding either that the killing occurred accidentally or that the defendant used reasonable force in defending herself from assault.
Therefore, I would conclude that the error in admitting evidence contrary to Johnson was harmless beyond a reasonable doubt.
I would affirm the judgment.
McComb, J., and Burke, J., concurred.Despite the concession, however, it appears from the record far mor likely that Lillian Moreno’s testimony was improperly admitted as beinj "inconsistent” with Berta’s direct cross-examination testimony as t( lack of recollection — a not uncommon mistake also made by the trial cour in Sam — than as being inconsistent with her equivocal direct testimony The majority attempt to create in the direct testimony an inconsistency which neither the trial court nor the parties appear to have had in mind
The lack of a timely objection might preclude raising on appeal any issue relating to the admission and use of the prior statement for impeachment purposes (see People v. Sam, supra); hut as the majority point out,.no objection was required in this pre-Johnson cáse to the substantive use of the testimony.