I concur in the opinion of Justice Van Dyke. In People v.Howard, 143 Cal. 316, I approved the concurring opinion of the chief justice, in which it was held error to refuse an instruction similar to defendant's instruction No. 20 here involved. At that time my attention had not been called to the case of the People v. Rodley, 131 Cal. 259, cited in the opinion of Justice Van Dyke. Upon further consideration of the question I am satisfied that the refusal of such an instruction should not be considered an error of sufficient importance to justify a reversal in any case where the jury are fully instructed that the verdict must be based upon the evidence alone. Each juror is required at the beginning of the trial to take an oath that he will well and truly try the matter in issue and a true verdict render according to the evidence. (Code Civ. Proc., sec. 604; Pen. Code, sec. 1046.) The proposed instruction assumes that an instruction from the court is necessary to inform a juror that this oath means that he is to act upon his own judgment, or that it is necessary to inform him that, after having taken such an oath, it would be a violation of it to render a verdict because a majority of the jury believed it to be according to the evidence, although he himself did not so believe. The defendant has no right, as matter of law, to be so safeguarded against the misconduct of the jurors. Section 1258 of the Penal Code provides that this court on appeal must disregard "exceptions which do not affect the substantial rights of the parties." An exception which involves nothing more important than the failure of the court to protect the defendant against the very remote contingency that some juror may so misunderstand or disregard his oath and the other instructions, or the equally remote contingency that such a *Page 757 juror would be prevented from so doing by an instruction such as that here involved, does not, in my opinion, affect the substantial rights of the defendant.