I dissent.
The majority opinion fully and fairly sets forth the facts. That opinion concedes that the only purpose in forcing Gross to stand trial and in refusing to accept his plea of guilty “was to get before the jury evidence inadmissible against Brower. ’ ’ The majority concede that this was error and that “This practice is highly reprehensible.” Nevertheless, the majority state that they are “forced” to hold that the error was not prejudicial under article VI, section 4% of the Constitution, because the other evidence in the record shows guilt. The inadmissible evidence, being a confession of a supposed coactor, was highly persuasive and could not help but be convincing to a _ jury. I concede that the other evidence in the record is sufficient to sustain a finding of guilt, but that *573evidence is by no means conclusive on the issue. I cannot say, with certainty, that, had the inflammatory confession not been admitted and not been read to the jury and emphasized during the argument, the jury would have convicted. That conviction, aside from the confession, rests primarily on the testimony of a handwriting expert, and such experts have frequently been disbelieved by juries.
Article VI, section 4%, serves a most important purpose, and that is to prevent all errors resulting in a reversal. But that section does not require that all errors, no matter how great, must be held to be nonprejudicial simply because, independently of error, guilt may be spelt out of the record. The fundamental requirement in every case, guaranteed under the state and federal Constitutions, is that the defendant must be accorded a fair trial. The Constitution guarantees that a defendant is entitled to have his guilt or innocence determined according to law, and is entitled to the protection of his substantial rights. Here the defendant was not accorded that protection. How can this court say, as a matter of law, from the cold record that, had defendant been separately tried, as the majority admit he should have been, and had the confession of Gross implicating defendant not been admitted into evidence and read and emphasized to the jury, this jury nevertheless would have convicted him on the testimony of the expert? It is not necessary, in order to require a reversal, that the appellate court be convinced that the defendant was prejudiced by the error. Whenever it appears that such error could have prejudiced him, it is the duty of an appellate court to reverse. Otherwise, the rule that a defendant is entitled to a fair trial will have completely disappeared from our law.
These principles are not new. They are the principles that have frequently been stated by the appellate court, by the Supreme Court of California and by the Supreme Court of the United States. One quotation from each of these courts demonstrates that this is so.
In People v. Adams, 76 Cal.App. 178, 186 [244 P. 106], a frequently cited case, the District Court of Appeal declared: “The evidence is sufficient to support the judgment. It is perfectly clear, however, that section 4% of article VI of the constitution was not intended to mean that the mere fact that the evidence may support the judgment is a sufficient reason in all eases for refusing to set it aside. To give the section that meaning would often lead to gross miscarriages of jus*574tice, as where evidence vital to the case of a party is rejected or evidence vitally damaging to Ms case is erroneously admitted, or where the court erroneously instructs or refuses to instruct the jury as to the law applicable to an essential issue. The courts have not attempted to frame a definition of ‘miscarriage of justice’ which can be applied to the varying circumstances of the many cases where the constitutional provision is invoked, and obviously it would be impossible to ' do so. [Citing ease.] The quotations which follow, however, taken from cases in which the question has arisen, are elucidating. ‘The central or all-important purpose of said constitutional provision is, obviously, to legally justify the courts in refusing to interfere with or disturb verdicts of guilty in criminal cases in the trial of which error has been committed and in which the- evidence amply supports such verdicts, when such interference may justly be withheld consistently with a just and proper regard for the substantial rights of persons tried for public offenses. ’ (People v. Tomsky, 20 Cal.App. 672, 683 [130 P. 184].) ‘We do not understand that the amendment in question was designed to repeal or abrogate the guaranties accorded persons accused of crime by other parts of the same constitution or to overthrow all statutory rules of procedure and evidence in criminal cases. When we speak of administering “justice” in criminal cases, ... we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected. ’ (People v. O’Bryan, 165 Cal. 55, 65 [130 P. 1042].) ‘The phrase “miscarriage of justice” does not simply mean that a guilty man has escaped, or that an innocent man has been convicted. It is equally applicable to cases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied.’ (People v. Wilson, 23 Cal.App. 513, 524 [138 P. 971].) ‘We are unable to determine whether the defendant would or would not have been convicted by the jury had this erroneously admitted testimony been withdrawn from their consideration. This being so, we do not feel that section 4% of article VI of the Constitution can be given application to uphold the judgment. ’ (People v. MacPhee, 26 Cal.App. 218, 226 [146 P. 522].) . . . ‘Nor is it a matter for consideration . . . that another jury upon a new trial *575might upon such conflicting evidence and proper instructions render a verdict of guilty.’ (People v. Roe, 189 Cal. 548, 561 [209 P. 560].) [See, also, seven other cases cited.] ” (Italics added.)
The Supreme Court of California, in People v. Sarazzawski, 27 Cal.2d 7, 10 [161 P.2d 934], stated the proper rule as follows: “There is no question that the evidence amply supports the verdict and judgment but, regrettably, we find in the record several incidents which should not have occurred in a fair and orderly trial. At least two of such incidents are matters of such grave moment as to amount to substantial departures from the established elements of a fair trial, to which every person charged with crime, no matter how rich or poor, virtuous or debased, is entitled. When a defendant has been denied any essential element of a fair trial or due process, even the broad saving provisions of section 4% of article VI of our state Constitution cannot remedy the vice and the judgment cannot stand. [Citing eases.]” (Italics added.)
The federal statute on the subject is substantially similar to article VI, section 4%. The leading case interpreting the federal statute is Bollenbach v. United States, 326 U.S. 607 [66 S.Ct. 402, 90 L.Ed. 350], At page 614 appears the following:
“In view of the Government’s insistence that there is abundant evidence to indicate that Bollenbach was implicated in the criminal enterprise from the beginning, it may not be amiss to remind that the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedures and standards appropriate for criminal trials in the federal courts.
“. . . The ‘technical errors’ against which Congress protected jury verdicts' are of the kind which led some judges to trivialize law by giving all legal prescriptions equal potency. . . . Prom presuming too often all errors to be ‘prejudicial, ’ the judicial pendulum need not swing to presuming all errors to be ‘harmless’ if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumber*576some that process may be.’’ (Italics added.) (See, also, Bihn v. United States, 328 U.S. 633 [66 S.Ct. 1172, 90 L.Ed. 1485]; Kotteakos v. United States, 328 U.S. 750 [66 S.Ct. 1239, 90 L.Ed. 1557].)
The rules announced in these cases have been violated by the majority opinion. Such a violation of defendant’s constitutional rights cannot be justified on the ground that a majority of this court honestly believe that defendant is guilty. The point is that defendant has not been found guilty in the manner required by law. This defendant, under our law, is presumed innocent until found guilty by a jury after a fair trial. The right to a fair trial is as important as the right to a jury trial. It is not sufficient to substitute for the constitutionally protected right to a fair trial the honest belief of a majority of an appellate court that the jury could, and probably would, have convicted without the inadmissible evidence. We cannot and should not substitute trial by appellate court for trial by jury.
The judgment, in my opinion, should be reversed.
A petition for a rehearing was denied July 9, 1949. Peters, P. J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied July 21, 1949. Carter, J., and Sehauer, J., voted for a hearing.