(dissenting)—I can agree with all that has been said in the majority opinion, except the part which states the inquiry made of appellant about carrying a gun at the time the deceased assaulted him was with reference to a collateral matter and was prejudicial to such an extent as to entitle him to a new trial.
*185When testifying as a witness in his own behalf, appellant told the jury about the assault made upon him by the deceased and its effect upon his subsequent mental condition. If his testimony with reference to the assault had been confined to the subject of mental condition, there would have been no purpose in asking him on cross-examination if he had a gun on his person when the assault was committed. But appellant was asked by his counsel if he had done anything towards Higginson to provoke the assault and he gave a negative answer. The only purpose of opening up this subject was to show that Higginson was the aggressor. The issue having been tendered by appellant, it was proper to ask him on cross-examination if he was armed when he and Higginson approached each other. If he denied such was the fact, the contrary might be shown on rebuttal. Proof of such fact would not be of any assistance to the jury in determining the mental status of appellant when he shot the deceased, but it was responsive to the claim made by appellant that the assault was unprovoked. The subject having been opened up, the state had the right to portray the whole picture.
Prior to the appellant becoming a witness, testimony had been submitted that his reputation for being a peaceable, law-abiding citizen in the community where he lived and worked was good. At the time the assault was made, appellant was traveling on a ship, which was on its way to the place where he resided. If appellant desired the jury to have the benefit of testimony as to his good reputation as a peaceable and law-abiding citizen, he would not be in a position to complain if it was made to appear that close to the time when his reputation was being built up he carried a gun on his person instead of transporting it among his personal effects.
I cannot agree that there was any attempt to impeach the veracity of appellant on a collateral matter, or that the inquiry made brought inflammatory matter of a prejudicial character into the case. The appellant had committed murder, which he did not deny. He sought to escape by the insanity route. He also wanted the jury to know he had *186been the victim of a grievous assault by the deceased, hoping that such knowledge might afford in the minds of the jurors some justification of his act. He invited what followed in the way of rebuttal of an inference he wanted drawn that he was a defenseless victim of an assault by the deceased and the sympathy that might accompany knowledge of such fact.
However, even though it may be said there is room for a difference of opinion whether error was committed by the court, it was not of such a prejudicial character as to warrant setting aside the verdict of the jury. The facts surrounding the commission of the crime were so clear and convincing that letting the jury know appellant was armed when assaulted by deceased two and one-half years before he carried out his planned revenge could not possibly affect any inducement to a verdict that was inevitable.
Whenever we are called upon to review a record and are asked to set aside a verdict of a jury because of error in the reception of evidence, we may start out with a presumption the error was prejudicial, but if we can say after a full consideration of the record that, had the evidence been excluded, the jury would in all probability have rendered the same verdict, its admission will be held not to have been prejudicial. This method of determination whether error may or may not have been prejudicial should not be used where the accused has been deprived of some substantial right, or where it appears he has not had a fair and impartial trial on the merits. Whether the error complained of in a given instance was or was not prejudicial, must depend upon the circumstances of the particular case rather than on any specific rule of law. The general attitude of the courts with respect to the subject is stated in 24 C. J. S. 841, Criminal Law, § 1887, as follows:
“Accordingly, the appellate courts are disposed to regard as harmless intervening errors where it appears from the record that the conviction is clearly correct on the merits; where it appears on the whole case that substantial justice has been done; where the record shows that accused had a fair trial; where the record conclusively shows that the alleged error could not have resulted-in prejudice; where *187from the whole record the guilt of accused appears to be clearly established; where no other verdict could have been returned on the evidence, and where the conviction was just and would have been reached if the errors had not been committed. So, also, where it can be said from the record that the errors complained of could not reasonably have affected the result of the trial, they may be regarded as harmless, and this particularly where proof of accused’s guilt is clear.”
Owing to a lack of understanding as to the attitude of appellate courts in determining whether error was or was not prejudicial, differences of opinion on the subject arose in State v. Redwine, 23 Wn. (2d) 467, 161 P. (2d) 205, and State v. Robinson, 24 Wn. (2d) 909, 167 P. (2d) 986. However, in later cases, particularly the recent case of State v. Wilson, 38 Wn. (2d). 593, 231 P. (2d) 288, without stating the method of approach which gave rise to the differences of opinion in the two cases just referred to, we in fact considered the whole record and reached the conclusion that the verdict of the jury would in all probability have been the same even though the rejected evidence had been received. We held that the error was not of such a prejudicial character that would warrant granting a new trial.
In the cases cited in the majority opinion, we were able to conclude after a perusal of the records that, had the irrelevant inquiries not been made, the jury in all probability might have rendered different verdicts, and therefore the errors were prejudicial to such an extent as to warrant the granting of new trials. It is clear from the record before us that the admission of the evidence in all probability was not a factor that in any way influenced the jury in reaching a verdict of guilty. The appellant did not deny that he killed the deceased. On the question of mental irresponsibility, the jury rejected theory and accepted reality, which was within its province. The appellant had a fair and impartial trial, and I see no reason why the verdict of guilty should be set aside.
Mallery and Hill, JJ., concur with Grady, J.
April 30, 1952. Petition for rehearing denied.