Domingo

Defendant was charged with murder, pleaded not guilty, waived a jury, was tried by the court and found guilty of voluntary manslaughter, a lesser included offense. His motion for a new trial was denied. This appeal followed.

The sole question is whether sufficient evidence sustains the trial court’s finding.

Voluntary manslaughter is homicide unpremeditated, without malice aforethought, but committed upon sudden quarrel or in heat of passion. (People v. Dugger, 179 Cal. App.2d 714, 718 [ 4 Cal.Rptr. 388 ].) The test distinguishing it from murder is: “ 1 whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion—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. ’ ” (People v. Borchers, 50 Cal.2d 321, 329 [ 325 P.2d 97 ], quoting from People v. Valentine, 28 Cal.2d 121, 139 [ 169 P.2d 1 ].)

Here homicide by stabbing is admitted but defendant’s contention is that the evidence establishes without conflict that he acted justifiably—in…