I dissent.
The majority opinion concedes that the instruction which related to a confession was inapplicable to the case, and that a portion of the instruction given was clearly erroneous, but holds that it was not prejudicial to the defendant. I cannot agree. In my opinion, it was prejudicial, and when considered with other occurrences at the trial, constituted reversible error.
*513The word “confession” has a connotation to the average person which the word “admission” does not have. (Wigmore, Evidence, 3d ed., § 816) points out that where a confession is concerned, the testimonial aspect is the predominant one. The jury may very well have based its verdict on the supposed confession of guilt because it was of the impression that defendant had freely and voluntarily said that he had committed the crime and was thereby impliedly willing to receive his punishment. In addition to the prejudicial effect of the instruction which should not have been given under the facts of the case, the instruction went even farther and permitted the jury to consider it even if it were found to he false. It is significant that no instruction was given which would tend to clarify this statement, if such clarification could have been achieved. I cannot see how a false confession of guilt can be considered as having any bearing on a person’s guilt or innocence. In People v. Ford, 89 Cal.App.2d 467 [200 P.2d 867], the court was concerned primarily with the falsity of a confession obtained after the accused had been informed of the crime with which he was charged. It was there held that the giving of the same instruction as the one present in this case constituted reversible error. The statements made by the defendant in this case were made prior to any accusation or charge against him and could not have been considered as a confession. Wigmore (§821) defines a confession as “an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it.” [Emphasis that of the author.]
There was no evidence in the case which warranted the giving of an instruction on the effect of a confession. In Davenport v. Stratton, 24 Cal.2d 232 [149 P.2d 4], this court held that the giving of an instruction without support in the evidence constitutes prejudicial error where it is calculated to mislead the jury.
With respect to another occurrence at the trial, the majority concede that the conduct of the juror was “unfortunate,” but that the fact of the conversation, or attempted conversation, between the juror and the witness “in and of itself” did not constitute prejudicial error. It is also stated that the conversation (of which the defendant was not informed during the course of the trial) between the judge *514and the juror, with reference to the meaning of a hung jury, was improper but could not have prejudiced the defendant.
I am of the opinion that the testimony of Potter was also prejudicial in that it tended primarily to show criminal disposition on the part of the defendant. This is apparent from the majority opinion which states that defendant’s actions in the bar “indicated that defendant engaged in the taking of bets, shed some light on the nature of the transaction between defendant and the newsboy which followed shortly thereafter, and also tended to confirm the admissions made to O’Keefe with respect to defendant’s occupation.”
It would seem to me that it cannot fairly be said that had these errors not occurred the verdict would have been the same. (People v. Orcalles, 32 Cal.2d 562, 573 [197 P.2d 26].)
I would therefore reverse the judgment as to count one as well as to count two.
I concur: Sehauer, J.
Appellant’s petition for a rehearing was denied June 29, 1950. Carter, J., and Sehauer, J., voted for a rehearing.