The defendant, Louis A. Muhlner, was informed against in the county of Alameda for the crime of murder, alleged to have been committed on the twelfth day of August, 1895, by the unlawful and felonious killing of one Jennie Lewis, at the said county of Alameda.

The defendant entered a plea of not guilty, and, upon a trial, he was found guilty of the crime of manslaughter.

Thereafter, and before judgment, defendant moved for a new trial upon all the statutory grounds provided by section 1181 of the Penal Code, except the first and seventh. That is to say, the motion was not based upon the ground that the trial was held in the absence of the *305 defendant, or upon the ground of newly discovered evidence.

The motion for a new trial, as appears by the order granting the same and from the bill of exceptions, was granted for the reasons shown by the following copy of said order:

The people appeal from the order granting a new trial, and urge that the court erred in granting said motion at the instance of defendant.

A careful review of the record fails to convince us that there was any good cause for granting a new trial other than that assigned by the trial court as a reason thereof.

Was the reason assigned sufficient to justify the order? We think not. Section 1159 of the Penal Code provides that: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged,” etc.

The offense of manslaughter is necessarily included in the charge of murder, and the court very properly so instructed the jury, and advised them that, in a certain state of the case, they could find the defendant, *306 guilty of manslaughter. We agree with the court below that the evidence was quite sufficient to warrant a verdict of murder.

It follows that the jury had a perfect right to bring in a verdict of manslaughter if they thought the evidence warranted such verdict.

A verdict should not be set aside and a new trial granted on the motion of the defendant, except for some omission or error prejudicial to him. (Pen. Code, sec. 1404.) In the case at bar the verdict was set aside and a new trial granted on the ground that the verdict was too favorable to the defendant.

The doctrine is well settled by this court that a defendant cannot complain where the determination of his case was more favorable to him than the evidence warranted. (People v. Barnhart, 59 Cal. 381 ; People v. Maroney, 109 Cal. 277 ; People v. Bowen, 109 Cal. 381 ; People v. Jefferson, 52 Cal. 452 .)

In People v. Barnhart, supra, where the defendant urged as ground for reversal that the jury found him guilty of burglary in the second degree, when the evidence showed beyond controversy burglary in the first degree, and there was no evidence whatever of second degree burglary, this court said: “But it is a sufficient answer to the objection taken on behalf of the defendant, to say that he is not prejudiced by the error complained of. If the jury erred, the error was on the side of the defendant, and he cannot be permitted to urge in this court, as a reason for the reversal of the judgment of the court below, that the determination there was more favorable to him than the evidence warranted. .... The substantial rights of the defendant must have been injuriously affected by the error complained of to warrant our interference.”

A verdict contrary to instructions—for a less degree of the offense than the evidence proves, must be received and carried out. A new trial cannot be ordered. (2 Bishop’s New Criminal Procedure, sec. 642; Jordan v. State, 22 Ga. 545, 559 ; Barnett v. People, 54 Ill. 325 ; Com *307 monwealth v. McPike, 3 Cush. 181 ; 50 Am. Dec. 727 ; Commonwealth v. Walker, 108 Mass. 309 ; Commonwealth v. Burke, 14 Gray, 100 ; Commonwealth v. Smith, 151 Mass. 491 ; Fagg v. State, 50 Ark. 506 ; Allen v. State, 37 Ark. 435 ; Pratt v. State, 51 Ark. 167 .) Many other cases might be cited, but these are deemed sufficient to show that a conviction of a lesser offense (necessarily involved in the indictment) than called for by the evidence is not cause for granting a new trial, or for reversal on appeal where such motion for new trial has been refused by the trial court.

The verdict of guilty of manslaughter is the equivalent of a verdict of not guilty of the charge of murder, and he cannot be again tried upon that charge. (People v. Gordon, 99 Cal. 227 ; People v. Apgar, 35 Cal. 389 ; People v. Gilmore, 4 Cal. 376 ; 60 Am. Dec. 620 .)

The defendant having been properly convicted of the crime of manslaughter, the granting of the motion for a new trial upon the grounds stated therein was erroneous, and the order should be reversed and the court below directed to pronounce judgment against the defendant upon the verdict.

Belcher, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the order is reversed and the court below directed to pronounce judgment against the defendant upon the verdict.

McFarland, J., Henshaw, J., Temple, J.