I concur in that portion of the opinion which affirms the judgment of conviction of murder of the first degree, but dissent from the reversal of the judgment insofar as it relates to the penalty for the offense of first degree murder.
*570Assuming that the court erred in its ruling admitting into evidence the telegram sent by Mrs. Poulopoulos to the witness Wilson and that the statements of the deputy district attorney to the jury exceeded the bounds of legitimate argument. I am persuaded from a reading of the record in this case that it comes within the purview of the language in People v. Linden, 52 Cal.2d 1, 27 [338 P.2d 397] and reiterated in People v. Love, 56 Cal.2d 720 [16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 33, 809] at page 731, that while error tending to affect the jury’s attitude in fixing the penalty “implicitly invites reversal in every case,” that “under extraordinary circumstances” the constitutional provisions (art. VI, §4%) may come to the rescue of the verdict.
The majority opinion refers to the crime with which we are concerned as a “heinous” one. Indeed it was, and a cruel and brutal one as well.
As stated in the majority opinion the two officers driving a police car noticed “. . . two cars, one a black 1950 Cadillac and the other a maroon 1950 Chrysler, each with a single occupant, the driver, move Out of a parking lot and turn onto Seaside Boulevard. About 10 minutes later the two officers proceeded down Seaside Boulevard and saw the same two cars standing on the side of the road. A Ford was parked in front of the Cadillac. Observing that the hood on the Cadillac was raised and that [defendant] Wilson was looking into the engine, the two officers stopped to give assistance.” (Emphasis added.) While Officer Owings was inquiring of Wilson as to what was the difficulty with the latter’s vehicle, Terry (appellant herein) shot and mortally wounded Officer Owings, and then turned his gun on Officer Brizendine, shooting the latter in the leg. Defendant Terry continued shooting at Officer Brizendine in an effort to kill him also, until the former’s supply of ammunition was exhausted. Thereupon defendant Terry ran to the Chrysler and as stated in the majority opinion, “got into the driver’s seat, and with [defendant] Wilson beside him, backed out the car, driving over Owings fallen body, and sped down Seaside Boulevard.” (Emphasis added.) All this evidence of savagery, unusual cruelty and immeasurable depravity was before the jury on the penalty hearing, as was evidence of defendant Terry’s prior convictions of moral offenses, to wit: Penal Code section 288 (Crimes against children: Lewd or lascivious acts) and section 286 of the Penal Code (The infamous crime against nature). To me *571it seems manifest that these evidentiary features of the cause now engaging our attention strictures this case as one possessing the “extraordinary circumstances” referred to in People v. Love, supra, 56 Cal.2d 720, 733 and People v. Linden, supra, 52 Cal.2d 1, 27 under which the constitutional provision (art. VI, § 4%) can “save the verdict.”
The constitutional provision just referred to was adopted by the People of this state and stands as a declaration by them of public policy under which as therein declared: “No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, 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.” (Emphasis added.) Manifestly, the policy of the constitutional provision is to disregard errors which would not change the result of trial unless they prejudice constitutional rights. However, in People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243], after a review of certain fundamental rights guaranteed to an accused as contrasted with other rights, this court said: “. . . not every invasion of a constitutional right necessarily requires a reversal; that generally, error involving the infringement of a constitutional right, like any other error, requires a further determination whether the defendant has been prejudiced, and the final test is the ‘opinion’ of the reviewing court, in the sense of its belief or conviction, as to the effect of the error; and that ordinarily where the result appears just, and it further appears that such result would have been reached if the error had not been committed, a reversal will not be ordered.” (Emphasis added.)
I cannot reconcile my conscience ‘ ‘ ‘ after an examination of the entire cause, including the evidence’ . . . that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (People v. Watson, supra, 46 Cal.2d at p. 836) when, as was further stated in the Watson case just cited at page 837, “Nevertheless, the test . . . must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.” (Emphasis added.)
For the foregoing reasons, I would affirm the judgment *572both as to the conviction of murder of the first degree and the penalty imposed by the jury.