I concur in the judgment. The instruction in terms of Penal Code, section 1105, was erroneous for reasons set forth in People v. Thomas, 25 Cal.2d 880, 894-896 [156 P.2d 7], and in my concurring opinion in People v. Albertson, 23 Cal.2d 550, 586-589 [145 P.2d 7]. It is doubtful whether such an instruction should be given even if accompanied by a proper explanation, but in any event the sentence that the court added in its instruction to the text of the section did not explain adequately the meaning of the' section. I do not believe, however, that the error was prejudicial in this case; it is improbable that a reasonable jury properly instructed would have rendered a different verdict.
I believe that People v. Kolez, 23 Cal.2d 670 [145 P.2d 580], should be overruled for the reasons set forth in my dissenting opinion therein. Until it is, however, an instruction like the one there involved is not erroneous.