I concur in the judgment.
However, I must point out that no constructive purpose is served by including in the opinion the dictum which results in disapproving People v. Superior Court (1927) 202 Cal. 165 [259 P, 943], and People v. Superior Court (1966) 240 Cal, *506App.2d 90 [49 Cal.Rptr. 365], Both of those cases are proper examples of the appropriate use of mandate by the People and should not be disapproved. In the former case the court pronounced an erroneous judgment on the verdict of the jury; in the latter the trial court granted a motion for a judgment notwithstanding the verdict, a proceeding unknown to the criminal law. In neither case did the court order a new trial. We must not overlook the fundamental purpose of our penal statutes: not to give defendant or the People an unconscionable advantage but ‘‘ to promote justice’ ’ (Pen. Code, § 4).
Burke, J., concurred.