I agree with certain portions of the opinion prepared by Mr. Justice Tray-nor, but I disagree with other portions and dissent from the conclusion that the judgment and order denying a new trial should be reversed.
More specifically, I agree with those portions which declare certain of defendant’s claims of error to be without merit. On the other hand, I cannot agree with certain portions of the discussion which sustain some of defendant’s claims of prejudicial error. It would serve no useful purpose, however, to enter into a discussion of each of the several claims, but a reference to one such claim appears appropriate.
One of defendant’s principal claims of prejudicial error rests upon the failure of the trial court to give defendant’s requested instruction to the effect that in a case resting wholly upon circumstantial evidence, “each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt must be proved beyond a reasonable doubt.” This refusal is declared by Mr. Justice Traynor to constitute prejudicial error. I cannot agree.
This court held in People v. Watson, 46 Cal.2d 818, 830-831 [299 P.2d 243], that the requested instruction was a proper instruction, but that in the light of the instructions given, there was no prejudicial error in the failure to give it. The same is true here. The trial court gave numerous instructions *761in this general field including CALJIC 21, 24, 25 and 26. Additionally, the trial court specifically instructed: “Before the jury may find a defendant guilty, the law requires that all of the essential elements of the crime charged, and each fact necessary to establish the commission of the crime by the defendant must be proved beyond a reasonable doubt and to a moral certainty.” The quoted instruction embodies the principle found in defendant’s requested instruction, and the subject was therefore adequately covered.
Furthermore, I find nothing in the record to justify the statement that the trial court “positively informed the jury that the law was otherwise.” During a colloquy between court and counsel on the voir dire examination of the jurors, and relating to an objection to a lengthy question on another point, the trial court did make a statement that “Each circumstance does not require proof to a moral certainty and beyond a reasonable doubt.” Counsel for defendant immediately said: “That wasn’t my point. That was not the point. Perhaps I can state it in another way.” The trial court then said: “I could not have answered the question yes or no without numerous other factors to be considered.” Counsel for defendant then reframed his lengthy question, and the reframed question was answered without objection.
In my opinion, the trial court’s statement was correct and in any event, it could not have been reasonably construed as contrary to the trial court’s formal instructions on the subject under discussion. It has never been held that “each circumstance,” as distinguished from “each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt” (as stated in the requested instruction) or “each fact necessary to establish the commission of the crime by the defendant” (as stated in the given instruction) must be proved beyond a reasonable doubt. Certain facts or circumstances may appear in a lengthy record, which facts and circumstances may not be essential to the determination of the guilt of a defendant; but it is only the “essential” or “necessary” facts in the chain of circumstances which must be proved by the quantum of proof required to sustain a criminal conviction. As above indicated, the trial court did instruct the jury that “each fact necessary to establish the commission of the crime by the defendant must be proved beyond a reasonable doubt and to a moral certainty.” I therefore find no prejudicial error in the failure to give the requested instruction.
*762It may be assumed that in the lengthy record covering more than 1,700 pages, some error may be found. A reading of that record convinces me, however, that the evidence presented a chain of circumstances so tightly linked about defendant that there is not the slightest doubt concerning defendant’s guilt of the cold-blooded murder of his 77-year-old victim in the perpetration of robbery. I find no error of such nature as to sustain a claim that there was any likelihood that a result more favorable to defendant would have been reached in the event that such error had not occurred. Under these circumstances, I believe that this is a typical case for the application of the constitutional mandate, which provides that no reversal shall be ordered “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.” (Const., art. VI, §4½; People v. Watson, supra, 46 Cal.2d 818, 837-838.)
I would affirm the judgment of conviction and the order denying a new trial.
Shenk, J., and McComb, J., concurred.
Respondent’s petition for a rehearing was denied July 16, 1957. Shenk, J., Spence, J., and McComb, J., were of the opinion that the petition should be granted.