The issues in this case are primarily—and as I view the record and the law, controllingly—factual. The errors found by the majority thus either are not errors at all in any present circumstance or, on acceptance of the traditional disparity of functions of the trial court on the one hand and the reviewing court on the other, are immaterial.
The majority hold that it was inconsistent and erroneous to instruct the jury that (a) “Murder is classified into two degrees, and if you should find the defendant guilty of murder, it will be your duty to determine and state in your verdict whether you find the murder to be of the first or second degree” and (b) (Form 302-B CAL JIG) “Although there are two degrees of murder, the evidence in this case is such that either the defendant is innocent of the charge of murder or he is guilty of murder in the first degree. ’ ’ I find neither inconsistency nor error in so instructing the jury.
*832At a trial (by jury) on the issues joined by the plea of not guilty to a charge of murder (assuming the evidence is sufficient to go to the jury at all) the law requires that the jury determine the issue of degree as well as identity of offense. Unless the defendant, in person, joined by his counsel and the prosecutor, stipulates to waive trial by jury the issue of degree must remain with the jury. It is code law that “Whenever a defendant is convicted of a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime of which the defendant is guilty, shall be deemed to be of the lesser degree.” (Pen. Code, § 1157.)
Furthermore, it is likewise elementary that in a criminal trial by jury the court cannot require the jury to bring in a directed verdict. Indeed the most that the judge can do in this respect is to “advise the jury to acquit the defendant. But the jury are not bound by the advice.” (Pen. Code, § 1118.) The judge may also comment on the evidence. (Cal. Const., art. VI, §19.) It was, therefore, not “inconsistent” to instruct the jury as to their duty as above related, if the evidence so required. As the court viewed the evidence—and I think the trial judge had every right to so view it—the instruction was not only not inconsistent, it was proper. It was consistent with the theory on which the case was tried and accords with a long-recognized practice. (See e.g., People v. Davis (1957) 48 Cal.2d 241, 250 [10] [309 P.2d 1].) If the defendant had acted only in justified self-defense, as he claimed in one of his inconsistent stories, he was entitled to an acquittal, not a manslaughter verdict. If his story was not true he was guilty of first degree murder. The trial judge was eminently fair in the instructions he gave; indeed if he erred at all it would seem (when all of the instructions given are read together)1 that he erred in favor of the defendant.
Furthermore, inasmuch as the issues here (i.e., whether there was error at all and if so whether it resulted in a miscarriage of justice) are primarily factual, this court is in a very weak position to review the findings of the jury and those of the trial judge. As the United States Supreme Court recently said (in a case wherein the rule does not apply with so much force as it does here) : “But the Examiner—the one whose appraisal of the testimony was discredited by the Court *833of Appeals in Florida Citrus Canners Cooperative ease—sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. As we said in the Universal Camera case:
“ . . The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case.’ 340 U.S. [474], at 496 [71 S.Ct. 456, 95 L.Ed. 456],
“For the demeanor of a voitness
“ ‘. . . may satisfy the tribunal, not only that the witness’ testimony is not true, but that the■ truth is the opposite of his story, for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.’ Dyer v. MacDougall, 201 F.2d 265, 269.” (Italics added.) (National Labor Relations Board v. Walton Mfg. Co. (1962) 369 U.S. 404 [82 S.Ct. 853, 855 [3-4], 7 L.Ed.2d 829] ; see also Estate of Bristol (1943) 23 Cal.2d 221, 223-224 [2, 3] [143 P.2d 689].)
The trial judge is presumed to have exercised his independent judgment on the weight as well as the sufficiency of the evidence in denying the motion for new trial. Certainly the evidence is not insufficient as a matter of law to support the judgment or the court’s rulings and I find no adequate basis for concluding here that any error has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 4½; People v. Watson (1956) 46 Cal.2d 818, 836 [12] [299 P.2d 243].)
For all of the reasons stated I would affirm the judgment and the order denying the motion for new trial.
McComb, J., concurred.
By no means all of the instructions relevant to this issue are included in the majority opinion.