concurring.—I concur in the judgment, on the ground of error in the two instructions last men*46tioned in the foregoing opinion. By those instructions the court invaded the province of the,jUry as to the weight and effect of evidence.
I perceive no error in the first instruction. -As I understand the instruction, which must :be taken as an entirety, and its several clauses harmonized, as-can be done without straining the meaning of the words used, it is a direction to the jury that they cannot convict either defendant unless Henry Coffey -had been killed under such circumstances that his killing would have been murder; but if there was no intent when the" assault was made to-commit ■ "murder, then the defendant'could ' only have been convicted of a simple assault, or in other words, if the assault had been made -without intent to commit murder, that even -though a killing had resulted, the defendant'could only have been convicted of simple -assault.
The reasoning of the foregoing opinion is in accordance with these propositions. The case cited in the -foregoing opinion from Louisiana should not, I think, meet the approbation of this court as long as the ■ rule laid down in People v. Doyell, 48 Cal. 85, and the cases which follow it, regarding the construction of directions, remain as the-rule of this forum.