(concurring):
Upon the basis of the record before us, I must agree with the result reached in the opinion authored by my Brother Chambers. I do so, however, in the expectation that our opinion does not finally adjudicate one substantial contention which is to be reviewed by the Supreme *804Court of California and other contentions which, it is expected, will be presented to the federal courts in the light of an enlarged record.
Oral argument in Talbot’s present appeal was presented to us on August 21, 1967. Thereafter, on August 25, 1967, the Court of Appeal of the State of California issued its opinion in People v. Aubrey, 253 Cal.App.2d 1009, 61 Cal. Rptr. 772 (1967), hearing denied, Cal.Sup.Ct., Oct. 19,1967. There it was held that Aubrey was improperly convicted of first degree murder because of the trial court’s failure to advise the jury, sum sponte, “that a deliberate and unprovoked homicide may be manslaughter.” The reversal was based on the opinion of the California Supreme Court in People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911 (1966). Since Aubrey’s conviction was invalid, the California courts should give serious consideration to Talbot’s contention that his conviction was wrong for the same reason. While I am unable readily to perceive controlling distinctions between the two cases upon the facts, the question of the reasonable interpretation and application of state criminal statutes properly falls, initially, within the responsibility of the state courts. I believe, therefore, that Judge Chambers should have withheld the comments contained in his Footnote 1, with all of which I, at this time, am not inclined to agree. If the California courts should eventually deny the relief which Talbot here claims upon the authority of Aubrey, he will doubtless then protest that a state may not apply its criminal laws in one way against some accused persons and in another way against others in the same position.1
It is also appropriate to take note of the case of Hill v. Nelson, No. 47318, now pending in the United States District Court for the Northern District of California. In that case, the petitioners, acting for themselves and undertaking to act for all others under death sentence in California, challenged the federal constitutionality of the death penalty as prescribed by California law and as applied in California. Included in their allegations was the charge that California has: adopted no legally satisfactory standard for the imposition of the extreme penalty. Following the institution of that suit, the district judge issued an order by which the execution of all California convicts under death sentence was temporarily stayed. Hill v. Nelson, 271 F.Supp. 439 (N.D.Cal.1967). The order was affirmed in our court. On August 24, 1967, the district judge vacated the stay order insofar as it affected others than the petitioners who had actually instituted the action for themselves. Hill v. Nelson, 272 F.Supp. 790 (N.D.Cal. 1967). The District Court held, in effect, that the action was not one which the petitioners could present as a “class action” in behalf of others similarly situated. At the same time, the District Court invited those adversely affected by the vacating of the stay order to seek relief in their own behalf. In the opinion, it was said:
“(3) The Court makes the following order as to other persons who are under sentence of death and whose automatic appeal has unsuccessfully terminated: Such a person may file his petition for writ of habeas corpus setting forth any federal constitutional ground, including any of the four contentions raised in the petitions of named condemned persons, that he has standing to raise. Upon filing, application for an individual stay of execution may be made to the Judges, of this Court. Justice requires that no condemned man who has standing to raise any federal constitutional issue, including any of the four common questions, should be executed until such question is finally adjudicated.”
272 F.Supp. at 795.
The petitioners in Hitt have represented that they will seek to offer evidence* *805applicable to all condemned California prisoners, in support of the contentions which they make. If such evidence is accepted and, either because of that evidence or because of generally applicable legal grounds alone, the court determines that the execution of the death sentences as to the named petitioners is barred under the federal constitution, then the determination should, of course, inure to the benefit of Talbot also.2
Because of Talbot’s appeal to this court, the District Court has, to this time, refused to entertain the petition which he filed pursuant to the suggestion contained in the language quoted above. I expect that following the issuance of this opinion, the District Court will consider itself freed of the courteous self-restraint which has caused it to deny the latest petition directed by Talbot to its attention. Such a view, implemented by a deferred order to show cause and an appropriate stay order, will assure that, in the end, Talbot shall not be deprived of such state or federal relief as might eventually be achieved by others in a no more favorable legal position than is he.
. “[A state] may not discriminate arbitrarily between persons * * Mr. Justice Douglas, dissenting in Whitney v. Florida, 389 U.S. 138, 139, 88 Sup.Ct.314, 19 L.Ed.2d 343 (1967).
. The order of submission in the present case recites:
“It is Judge Ely’s view that submission should be deferred pending procedure which appellant has been invited to invoke by the District Court of the Northern District of California in Hill, et al. v. Nelson, No. 47318.”