One hundred and four years ago this court ruled: “In capital cases, almost every ease is appealed. We do not complain of this, even when the grounds' of appeal do not present a plausible reason for the reversal of the judgment, since a natural sense of responsibility in the counsel to whose hands the life of a fellow being is confided may well influence him to exhaust every legal resource to save his client from the last penalty of the law. But still it is important that the laws should be enforced, so as to render as certain as possible the conviction of those guilty of their infraction. With every disposition on the part of the Judges to do this, the effort frequently fails, because something is done or omitted which contravenes some arbitrary or technical right of the prisoner. Courts have no power in criminal eases to affirm a judgment, merely because the Judges are persuaded that upon the merits of the case the judgment is right. If any error intervenes in the proceeding, it is presumed to be injurious to the prisoner, and generally he is entitled to a reversal of the judgment, for it is his constitutional privilege to stand upon his strict legal rights, . . . And yet it very often happens that the matter of exception taken by him serves no other *381purpose than to defeat justice.” (People v. Williams (1861) 18 Cal. 187, 193-194.) Today's majority decision reaches precisely the same result which would have been reached 104 years ago. Yet in the meantime (in 1911) the People of California in order to preclude such technical reversals added section 4% to article VI of our Constitution.1
In its present form, article VI, section 4% provides: “No judgment shall be set aside, or new trial granted, in any case, . . . 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. ’ ’ This court heretofore carefully defined the circumstances under which it could tenably find that there had been a “ miscarriage of justice.” In People v. Watson (1956) 46 Cal.2d 818, at page 836 [299 P.2d 243], we held that “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”
The undisputed facts of this case at bench as stated by the majority are as follows: “ On March 15, 1963, defendant . . . entered a service station in the City of Lodi, shot a customer in the leg, and drove off with a Dodge automobile belonging to the station owner. The California Highway Patrol was immediately notified, and Officer Charles Sorensen answered the call. He pursued defendant and his accomplice on Highway 12 at speeds of 85 to 90 miles per hour. During the chase defendant shot at automobiles passing in the opposite direction, apparently hoping to cause an accident and thereby halt Sorensen’s pursuit. In Rio Vista defendant crashed the Dodge, and with his accomplice fled on foot through a gate and around the side of a vacant house. Officer Sorensen followed on foot and as he passed through the gate and around the corner of the house defendant fired two shots at close range, killing the officer instantly.
*382“Defendant then procured the officer’s pistol and with his accomplice took the patrol ear and continued west on Highway 12. Deputy Sheriff Hale Humphrey and others, having been alerted, set up a road block of vehicles across the highway. Defendant deliberately drove the patrol car at a speed estimated to have been in excess of 100 miles per hour into the vehicles blocking the road, causing the death of Humphrey.”
The majority note that “defendant does not question the sufficiency of the evidence to support the verdict as to each of the crimes. ... It is argued, however, that the . . . court erred ... (1) in giving instructions, (2) in denying a motion for a change of venue, (3) in commenting and allowing . . . comment upon defendant’s failure to testify . . ., (4) in receiving into evidence . . . incriminating statements made by defendant . . ., and (5) in instructing and allowing evidence. ... on the penalty phase, concerning . . . parole. ...” Upon what appear to me to be relatively inconsequential (hence, constitutionally untenable) grounds, as hereinafter particularized, the majority reverse the trial court’s judgment as to each murder both as to the fixing of the penalty (death) and as to adjudication of guilt.
The majority say that “the state, with commendable forthrightness, concedes that the proceedings contravened the rules later announced by this court in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], and that the error was prejudicial. (See People v. Hines (1964) 61 Cal.2d 164 [37 Cal.Rptr. 622, 390 P.2d 398].) A reversal on the penalty phase is thus indicated. ’ ’ The quoted majority statement appears to me to be inadequate in detail and possibly subject to misunderstanding. A mere reading of Morse and of Hines reveals that Morse is not authority for the reversal in Hines. In Morse the court at length pointed out (see especially pp. 652-653 of 60 Cal.2d) the combination of facts and circumstances from which it expressly and affirmatively found (p. 653) : “after examination of the entire cause, including the evidence, we are of the opinion that it is reasonably probable that a result more favorable to defendant as to penalty would have been reached in the absence of the error.” There is no such finding in Hines. In marked contrast to Morse the court in the Hines case says (p. 170 of 61 Cal.2d) : “ [lb] Our sole inquiry here devolves into a determination of whether substantial error, that is substantial deviation from the standards established in Morse, has occurred. We have set forth above the incidents of the errors under the Morse test. That the deviations were substantial cannot be seriously questioned. *383We therefore hold that prejudicial error occurred in the instant penalty trial.” (Italics added.) Obviously Hines is a gross departure from Morse. My views as to the gravity of the constitutional error in Hines are definitively stated at pages 175 to 182 of 61 Cal.2d.
In my belief the state is in error in conceding “that the proceedings contravened the rules later announced by this court in People v. Morse, 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], and that the error was prejudicial.” I am furthermore of the opinion that the majority justices are in error in asserting that “the error was prejudicial. (See People v. Hines, 61 Cal.2d 164 [37 Cal.Rptr. 622, 390 P.2d 398].) A reversal on the penalty phase is thus indicated.” The majority in the circumstances here also transgress what I have understood to be both constitutionally and decisionally established law in stating that “the judgment must be reversed on the guilt phase as well due to the reception into evidence of incriminating statements clearly within the scope of those later denounced by this court in People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].”
Such reference to “incriminating statements . . . within the scope of those later denounced” in the Dorado majority opinion, is irrelevant to the case at bench. It is irrelevant (if we apply California’s Constitution, art. VI, § 4½) because the statements here held to have been improperly received add nothing significant to the eyewitness testimony and the real evidence of circumstances and ultimate facts. The majority opinion concedes that “there is more than sufficient direct evidence as to each of the crimes of which defendant was convicted aside from the statements improperly received into evidence.” The stolen automobile, the obviously lethal acts of defendant in the use of that automobile, the dead bodies of his victims, need no confession or admission from defendant to demonstrate that the killings were coldly calculated crimes, perpetrated in deliberate defiance of the law, and intended to destroy the brave officers who gave their lives in support of the law. As Mr. Justice Burke so aptly states in his dissent to Dorado (62 Cal.2d at p. 365) the United States Supreme Court in Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], upon which Dorado assertedly relies, “stresses that each case must be weighed in relation to the totality of its own circumstances.”
Furthermore, Justice Burke’s dissent in People v. Schader (1965) 62 Cal.2d 716, 733-735 [44 Cal.Rptr. 193, 401 P.2d *384665], pertinently declares: “Under the holding of Dorado, the improper admission of such statements and confessions, found to have been voluntarily given, is placed in the same category as the admission of an involuntary confession and the effect upon the jury is deemed prejudicial as a matter of-law compelling reversal. I believe this holding in Dorado to have been error and that the prejudice which results from the use of an improperly received voluntary confession is not necessarily the same as that which the Supreme Court of the United States has held to result from the use of an involuntary confession. . . . Although the admission in evidence of a voluntary confession was held to compel reversal under the particular circumstances present in Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977] . . ., and Dorado, it does not follow that voluntary confessions should be equated with involuntary confessions and admissions irrespective of the circumstance of the particular case."
As Justice Burke further pointed out in his Schader dissent (p. 770 of 62 Cal.2d) : “The exact wording of the California Constitution itself (art. I, §13) is significant: ‘In criminal prosecutions, . . . [no] person shall be . . . compelled . . . to be a witness against himself; . . .’ (Italics added.)
“The compulsory is the antithesis of the voluntary; the voluntary negates compulsion. ’ ’ Surely all the People of California—including police officers—should possess a right correlative to that of an accused to have a voluntary confession of crime considered by judge and jury. But more importantly here—where the incriminating statements of the defendant add nothing of consequence to the certainty or quality or quantum of his guilt—to disregard all direct and overwhelming evidence, and hold that the mere fact that the jury heard his statements must result in automatic reversal of the undoubtedly just judgment of conviction, appears to me to declare a constitutionally impermissible rule of law and to effect a lamentable miscarriage of justice.
The setting aside of a death penalty is, in my view, an even more solemn responsibility than the initial imposition of it. Imposition of the penalty is grave enough; it contemplates taking the life of the guilty transgressor; but that is in order to deter other criminals and thereby save the lives of potential victims. Setting aside such a judgment inevitably tends to weaken the deterrent effect of the law- • and thereby to encourage more murders of innocent victims. Regrettably, reversals of judgments in criminal cases—particularly if not *385on the merits—tend all too often to weaken respect for the law and the judicial process.
Weighing the entire record in the case at bench as Escobedo would have us weigh it—and as the Constitution of this state (art. VI, §§ 4 and 4½) requires us to weigh it—I cannot find ground in fact or in law for doubting that this defendant deliberately murdered California Highway Patrol Officer Charles Sorensen, or that he likewise murdered Deputy Sheriff Hale Humphrey, or that he committed the other crimes of which he was found guilty by a duly impaneled jury. Nor do I find any tenable basis for doubting that defendant was accorded full measure of due process of law, or for believing that any miscarriage of justice occurred in the trial court. The only miscarriage of justice I find in this ease is the reversal in this court.
I would affirm the judgments of the trial court in their entirety.
Burke, J., concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
As adopted October 10,1911, section. 4% was limited to "any criminal case.” Its salutary effect in stopping reversals on purely technical grounds was so noteworthy that it was amended in 1914 to apply to civil appeals as well as criminal.
For a more complete account of the reasons for action by the electorate in 1911, and the subsequent near full circle retrogression in decisional law, see People v. Modesto (1963) 59 Cal.2d 722 (dissenting opinion at p. 736 et seq. [31 Cal.Rptr. 225, 382 P.2d 33]); People v. Williams (1861) 18 Cal. 187, 194; People v. Hines (1964) 61 Cal.2d 164 (dissenting opinion at pp. 178-179 [37 Cal.Rptr. 622, 390 P.2d 398]).