When two findings of fact are in irreconcilable conflict the one less favorable to defendant must be set aside. In People v. Novo, defendant was originally charged with burglary and assault with intent to commit rape and was convicted of both second degree burglary and the assault. Since a necessary element of first degree burglary was ‘an assault on any person’ and he was exonerated of first degree burglary by the conviction of second degree burglary, and since the same assault was involved in the second count, the court held the conviction on the latter could not stand. In People v. Bales, supra, the court held a conviction of forcible rape to be inconsistent with an acquittal of kidnapping, in which a verdict of ‘not guilty’ nullified the element of fact (force) necessary to sustain the verdict of guilt.
In determining whether the verdicts are inconsistent, in that the findings upon which they are based are in irreconcilable conflict as in the Bales and Novo cases; and if so, whether apart from the evidence rejected by the jury in acquitting defendant of assault with a deadly weapon, there was sufficient evidence to sustain the conviction of manslaughter, we resort to the entire record before us. Defendant herein was charged with two separate offenses involving two separate victims, there being no reason apparent on the face of the information why he could not be convicted on both counts. Defendant was acquitted of assault with a deadly weapon and convicted of involuntary manslaughter.
The ‘assault’ element of the offense of assault with a deadly weapon as defined by section 245, Penal Code, consists of ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another’; and the weapon in such a felony assault must be a ‘deadly’ one.
Manslaughter is the unlawful killing of a human being without malice and to be involuntary it must have been done ‘in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection’.
