I dissent. In my opinion the mandatory provisions of article VI, section 4%, of the California Constitution are here applicable, to wit, that no judgment shall be set aside in any ease on the ground of (a) misdirection of the jury, (b) improper admission or rejection of evidence, (c) error as to any matter of pleading, or (d) error as to any matter of procedure, unless after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
The majority reverse the judgment, because (in their language) “it is reasonably possible that such errors may and could have tipped the scales against defendant. Such errors, therefore, must be held to have been prejudicial.” (Italics added.)
I must refrain from joining the majority in reversal, because I cannot say “after an examination of the entire cause, including the evidence .. . [that I am] of the opinion that the error [s] complained of ... [have] resulted in a miscarriage of justice.”
Schauer, J., concurred.
Respondent’s petition for a rehearing was denied September 18, 1963. Schauer, J., and MeComb, J., were of the opinion that the petition should be granted.