(concurring).
I concur. But I note my reservation about the statement that the jury “were not duty hound to canvass the second-degree instruction.” It seems to me that in some circumstances it could he given a misleading application inconsistent with the many admonitions in the decisions of this and other courts: that the jury should read and consider all of the instructions together. The difficulty is pointed up in the instant decision itself, which in the very next paragraph states that “the instructions, when all of them are considered together, clearly specify the requisite distinctions between first- and second-degree murder.” This I believe is the correct and adequate ground for the instant decision. However, I also note my agreement with the statement from the Gallegos case, (footnote 2, main opinion) “that under ordinary factual situations where a jury finds the defendant guilty of a greater offense, the giving of an erroneous instruction on a lesser offense is not deemed prejudicial.” This makes allowance for the fact that there may be some situations where the giving of an instruction on a lesser offense could be so erroneous and confusing as to impel a conclusion that the defendant had not had a fair trial.