in the excluded testimony and the instructions proposed by him but disallowed by the court. Whether the killing was the result of "the commission of an unlawful act, not amounting to a felony," or occurred "in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection," the defendant could obviously have been convicted of no less a crime than that of which he was found guilty, even if the testimony and the instructions whose disallowance by the court constitutes the ground of the objections under consideration had been admitted and given. In other words, it being true, as the code section declares, that involuntary manslaughter may be committed while the party responsible for the killing is doing a lawful act, and, assuming that the rejected testimony and instructions would have conveyed to the jury certain facts and principles of law in all respects sound and pertinent to the charge as laid in the information, yet, if the evidence was sufficient to convince the jury that the discharge of the weapon was directly due to the gross or culpable negligence of the defendant in the handling of the weapon at the time of its discharge, and that such negligence was the cause of the death of Escrivano, then, since he was found guilty of the lowest crime of which he could be convicted under the information, the rulings excluding the proffered testimony and disallowing the proposed instructions could not have had a harmful or prejudicial effect upon the substantial rights of the accused.

As we conceive it, the principle thus applied is the same as where an erroneous instruction peculiarly applicable to a charge of murder of the first degree has been given and the verdict is one of guilty of murder of the second degree or of manslaughter. Repeatedly it has been held that in such case, even though the instruction might be prejudicially erroneous where the verdict was of the first degree, a verdict of guilty of the lesser degree of murder or of manslaughter would render the instruction innocuous in its effect upon the rights of the accused.

We now come to a consideration of the proposition, urged with much vigor by the defendant, that the jury were not justified by the evidence in finding him guilty of any crime or degree thereof embraced within the crime charged.

The question, however, with respect to the evidence which this court is alone authorized to determine is whether we can

say, from the record, as a matter of law, that the jury were not justified in finding the verdict they returned; and it may just as well here be stated that, after a careful review of the whole record, we are constrained to the conclusion that we would not be justified in so declaring. In other words, the evidence as it is brought before us is such that whether the defendant was culpably negligent in the handling of the weapon at the time the fatal shot was discharged therefrom and, if so, whether such negligence was the cause of the death of Escrivano, are questions which it was for the jury to determine, and not within the legal competence of this court to review.

The general facts of this most unfortunate affair are given above. But precisely how or in what manner the pistol was discharged, the evidence does not disclose, nor, indeed, under the circumstances, is it to be supposed that anyone would know, unless it was the defendant himself. He, however, declared that he could not, except by mere conjecture, explain the direct cause of the discharge of the weapon, although the theory advanced by the defense is that he must have had his finger upon the trigger of the weapon when he was in the act of forcing the door open and have unconsciously pulled the trigger as the door gave way under the force he put upon it.

The weapon, according to the evidence and the testimony of the defendant himself, was what is known as a "self-cocker," and operates automatically-that is, it is one of those revolvers that are discharged by means of pressure upon or the pulling of the trigger. As seen, at the time the defendant attempted to and did shove the door in he held the weapon uncocked in his left hand, using his right hand and shoulder to break open the door. The instant the door gave in from the force applied to it by the defendant, the weapon exploded. In other words, the giving way of the door and the discharge of the pistol were approximately simultaneous. The only plausible explanation of the cause of the discharge is that either the trigger came in contact with some part of the door when it was forced open in such manner as to throw the lock back or, as the defense suggest, the defendant had his finger upon the trigger at the moment he exerted the force necessary to shove the door in and at the same instant of time involuntarily pulled the trigger-a movement which could be influenced or caused by the exertion employed in breaking open the door by means of the force required to be exerted for that purpose. This latter

theory is the more plausible of the two and, as seen, coincides with the view of the defendant as to the cause of the discharge of the weapon. It, however, only emphasizes the fact of the recklessness in handling a loaded firearm near the presence of others when the party handling it is at the same time attempting some other act which must necessarily distract his attention from the weapon. But whatever might have been the direct cause of the discharge of the weapon, the fact remains that it was discharged through some cause while in the hand of the defendant, and while he was engaged in forcibly effecting an entrance into a room where there was gathered a number of persons sitting about a table in close proximity to the door broken open by him and of whose presence there he was aware.

The handling of a loaded firearm in a public street or in a building or other place where a number of people are assembled or are passing to and fro is always attended with more or less danger, even where some degree of care is exercised in the handling of such weapon; but how much more danger must there be in the handling of such weapon by a person at a time when his mind is occupied by another matter of paramount concern to him. His mind could not at that time be upon the weapon to such a degree as to enable him to handle it with the care and caution with which ordinarily he would probably handle it. That the defendant's mind was not upon his weapon as he was forcing the door open, is very clear from the fact that he did not know precisely how it came to be discharged. It would seem to be true that the act of the defendant in holding in his hand a loaded weapon at the time he was engaged in forcing an entrance into the room, thus bringing into play much, if not all, of his physical power, and with his mind centered upon getting into the room, itself constituted gross or culpable negligence. At all events, the jury could reasonably have so viewed that act, and their verdict implies that they did thus view it, and, as before stated, we are unprepared to say, as a matter of law, that they reached an erroneous conclusion or that the result of their consideration of the evidence is not justified.

The next and last point to be considered involves the question of the alleged misconduct of the jury.

It appears that after the case had been submitted to the jury and the latter had retired to the jury-room for deliberation and had thus been out for some time, they caused to be

conveyed to the judge information that they desired further instruction as to the amount of punishment to which the defendant would be amenable in the event of the return of a certain verdict. The court thereupon ordered the jury to be brought before it and, this being done, the foreman, after stating that they had not agreed upon a verdict, remarked: "The jury would like to ascertain the degree of punishment that would follow conviction of either one of the degrees of murder charged in the complaint." To which the court replied that, except as to the crime of murder of the first degree, the matter of punishment was wholly a province of the court, and, consequently, one with which the jury had no concern, and declined to give them any information upon the subject. The jury were thereupon returned to the jury-room for further consideration of the case.

In support of his motion for a new trial upon the ground of the asserted "misconduct of the jury by which a fair and due consideration of the case has been prevented" (Pen. Code, sec. 1181, subd. 3), the defendant filed and introduced affidavits by two of the jurymen in which they alleged that they were at all times during the deliberations of the jury of the opinion that the defendant was entitled to an acquittal at their hands, and so voted up to the time that they were led to believe that the crime of involuntary manslaughter "was and is not a felony under the laws of the state of California; and affiants further say that to the best of their knowledge and recollection each and every member of said jury, while deliberating upon said case, expressed himself as believing that the crime of involuntary manslaughter is and was not a felony under the laws of the state of California"; that had they known or believed that the crime of involuntary manslaughter was a felony under the laws of the state of California, they 'never would have consented or agreed to a verdict of guilty of such crime in said action."

The reply to the contention that the showing thus made entitled the defendant to a new trial is that the affidavits of jurors cannot be received or considered for the purpose of impeaching their verdict. (People v. Azoff, 105 Cal. 632, [39 Pac. 59]; People v. Soap, 127 Cal. 408, 411, [59 Pac. 771]; People v. Emmons, 7 Cal. App. 685, [95 Pac. 1032].) In the Soap case, supra, the ground of the alleged misconduct of the jury was precisely the same as that upon which the defendant

in the case at bar based his affidavits alleging misconduct. The court in that case said: "It has been definitely settled that the affidavit of a juror cannot be received to impeach the verdict except where it is the result of a resort to the determination of chance."

We have now considered and disposed of all the points urged for a reversal.

The judgment and the order appealed from are affirmed.

Chipman, P. J., concurred.

BURNETT, J., Concurring.-I concur in the judgment and the foregoing opinion, but I desire to add that, in my judgment, if the defendant had shown the facts that he sought in vain to introduce in evidence, it would have afforded no justification nor excuse for his conduct in needlessly imperiling the lives of the men in the room. The mere circumstance that gambling was being carried on was not sufficient, as I view it, to warrant the defendant in breaking down the door, with a loaded pistol in his hand. Especially would this be true when he had reason to believe that a fatal affray might ensue. His desire and that of the company to suppress gambling was, of course, commendable, but the method resorted to was too drastic. Human life is too precious to be jeopardized for the purpose of ascertaining whether parties are engaged in a peaceful game of poker. Defendant should have directed the inmates to open the door before resorting to such violence, and I think he should have gone away rather than plunge into the room with his loaded revolver in his hand. Our aversion to vice should not blind us to the more vital consideration of life itself.