reiteration principle in California

1988I Our discussion begins with the reiteration that the standard of review of a grant of judgment notwithstanding the verdict, as described in Hauter v. Zogarts, supra, 14 Cal.3d 104, 110 , applies here as well.

1985“Such provision was probably omitted *824 from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject.” (People v. Bruggy (1892) 93 Cal. 476, 481 [ 29 P. 26 ], See also People v. Valentine (1946) 28 Cal.2d 121 [ 169 P.2d 1 ]; People v. Spurlin (1984) 156 Cal.App.3d 119 [ 202 Cal.Rptr. 663 ].) Hence to reduce an intentional killing to voluntary manslaughter, both “provocation and heat of passion must be affirmatively demonstrated. ” (People v. Sedeno (1974) 10 Cal.3d

1985“Such provision was probably omitted *824 from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject.” (People v. Bruggy (1892) 93 Cal. 476, 481 [ 29 P. 26 ], See also People v. Valentine (1946) 28 Cal.2d 121 [ 169 P.2d 1 ]; People v. Spurlin (1984) 156 Cal.App.3d 119 [ 202 Cal.Rptr. 663 ].) Hence to reduce an intentional killing to voluntary manslaughter, both “provocation and heat of passion must be affirmatively demonstrated. ” (People v. Sedeno (1974) 10 Cal.3d

1985“Such provision was probably omitted *824 from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject.” (People v. Bruggy (1892) 93 Cal. 476, 481 [ 29 P. 26 ], See also People v. Valentine (1946) 28 Cal.2d 121 [ 169 P.2d 1 ]; People v. Spurlin (1984) 156 Cal.App.3d 119 [ 202 Cal.Rptr. 663 ].) Hence to reduce an intentional killing to voluntary manslaughter, both “provocation and heat of passion must be affirmatively demonstrated. ” (People v. Sedeno (1974) 10 Cal.3d

1985“Such provision was probably omitted *824 from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject.” (People v. Bruggy (1892) 93 Cal. 476, 481 [ 29 P. 26 ], See also People v. Valentine (1946) 28 Cal.2d 121 [ 169 P.2d 1 ]; People v. Spurlin (1984) 156 Cal.App.3d 119 [ 202 Cal.Rptr. 663 ].) Hence to reduce an intentional killing to voluntary manslaughter, both “provocation and heat of passion must be affirmatively demonstrated. ” (People v. Sedeno (1974) 10 Cal.3d

1985“Such provision was probably omitted *824 from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject.” (People v. Bruggy (1892) 93 Cal. 476, 481 [ 29 P. 26 ], See also People v. Valentine (1946) 28 Cal.2d 121 [ 169 P.2d 1 ]; People v. Spurlin (1984) 156 Cal.App.3d 119 [ 202 Cal.Rptr. 663 ].) Hence to reduce an intentional killing to voluntary manslaughter, both “provocation and heat of passion must be affirmatively demonstrated. ” (People v. Sedeno (1974) 10 Cal.3d

1985“Such provision was probably omitted *824 from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject.” (People v. Bruggy (1892) 93 Cal. 476, 481 [ 29 P. 26 ], See also People v. Valentine (1946) 28 Cal.2d 121 [ 169 P.2d 1 ]; People v. Spurlin (1984) 156 Cal.App.3d 119 [ 202 Cal.Rptr. 663 ].) Hence to reduce an intentional killing to voluntary manslaughter, both “provocation and heat of passion must be affirmatively demonstrated. ” (People v. Sedeno (1974) 10 Cal.3d

1984These courts reasoned: “Such provision was probably omitted from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers on the subject.” (People v. Bruggy (1892) 93 Cal. 476, 481 [29 P.26].) 2 *125 Another line of cases following People v. Hurtado (1883) 63 Cal. 288, 292 , held a killing to be manslaughter when committed under the influence of passion caused by any insult or provocation sufficient to excite an irresistible passion in a reasonable person.

1976In MacFadden v. Walker (1971) 5 Cal.3d 809 [ 97 Cal. Rptr. 537 , 488 P.2d 1353 , 55 A.L.R.3d 1 ], we find a reiteration of this principle that precludes a forfeiture of payments by a defaulting vendee in favor of a vendor with respect to a sale-of-property contract.

1976In MacFadden v. Walker (1971) 5 Cal.3d 809 [ 97 Cal. Rptr. 537 , 488 P.2d 1353 , 55 A.L.R.3d 1 ], we find a reiteration of this principle that precludes a forfeiture of payments by a defaulting vendee in favor of a vendor with respect to a sale-of-property contract.

1976Thus, the MacFadden court points out that Freedman v. The Rector (1951) 37 Cal.2d 16 [ 230 P.2d 629 , 31 A.L.R.2d 1 ] established the legal principle "that the prohibition of punitive damages for breach of contract (Civ. Code, *296 § 3294), the strict limitations on the right to provide for liquidated damages (Civ. Code, §§ 1670, 1671), and the provision that `Neither specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case ...' (Civ. Code, § 3369) together established a policy that precludes any forfeiture having no reasonable relation to the damage caused

1976Thus, the MacFadden court points out that Freedman v. The Rector (1951) 37 Cal.2d 16 [ 230 P.2d 629 , 31 A.L.R.2d 1 ] established the legal principle "that the prohibition of punitive damages for breach of contract (Civ. Code, *296 § 3294), the strict limitations on the right to provide for liquidated damages (Civ. Code, §§ 1670, 1671), and the provision that `Neither specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case ...' (Civ. Code, § 3369) together established a policy that precludes any forfeiture having no reasonable relation to the damage caused

1946Such provision was probably omitted from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject." But in People v. Logan (1917), 175 Cal. 45 [ 164 P. 1121 ], this court reverted to accord with the Hurtado case and reversed a judgment of conviction of murder of the second degree because the jury were instructed in the language of the repealed section 23 of the Crimes and Punishments Act.

1946Such provision was probably omitted from the code upon the ground that it was entirely unnecessary and surplusage, being simply a reiteration of a principle of law settled and established by all text-writers upon the subject." But in People v. Logan (1917), 175 Cal. 45 [ 164 P. 1121 ], this court reverted to accord with the Hurtado case and reversed a judgment of conviction of murder of the second degree because the jury were instructed in the language of the repealed section 23 of the Crimes and Punishments Act.

1932Neither is the case of Truitner v. Knight, 83 Cal. App. 655 [ 257 Pac. 447 ], in point for that case holds that where the driver in question was proceeding within the speed limit, it was a question of fact for the jury whether he was driving his machine with the degree of care and caution required by section 113 (a) of the Vehicle Act, which section is declared to be but a reiteration of the rule which has always been in force that drivers of motor vehicles must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing.

1932Neither is the case of Truitner v. Knight, 83 Cal. App. 655 [ 257 Pac. 447 ], in point for that case holds that where the driver in question was proceeding within the speed limit, it was a question of fact for the jury whether he was driving his machine with the degree of care and caution required by section 113 (a) of the Vehicle Act, which section is declared to be but a reiteration of the rule which has always been in force that drivers of motor vehicles must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing.

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in

1927(Garns v. Halpern, 193 Cal. 193 [ 223 Pac. 545 ]; Cook v. Miller, 175 Cal. 497 [ 166 Pac. 316 ].) Regarding the provision of the Motor Vehicle Act just referred to, it was said in Reaugh v. Cudahy Packing Co., 189 Cal. 335 [ 208 Pac. 125 ]: “This is but a reiteration of the rule, in statutory form, which has always been in force without regard to a statutory promulgation to the effect that drivers or operators of vehicles, and more particularly motor vehicles, must be specially watchful in anticipation of the presence of others at places where other vehicles are constantly passing. ...” And in