I dissent.
In my opinion this case was correctly decided by the District Court of Appeal, First Appellate District, Division One, in an able and exhaustive opinion prepared by Mr. Presiding Justice Peters and concurred in by Justices Bray and Wood. (Cal.App., 288 P.2d 184.) After an exhaustive review of the evidence and an able and comprehensive discussion of the contentions of the respective parties, that opinion concludes: “We conclude, after reading the transcript, that, because we cannot say with conviction that, in the absence of the errors complained of, a different verdict would have been improbable, the judgment must be and is reversed, and a new trial ordered.”
The majority of this court concedes, as it must, that numerous errors were committed by the trial court during the trial of this case, but concludes that such errors were not prejudicial to defendant and did not result in a miscarriage of justice, as that term is used in section 4% of article VI of the Constitution of California.
I have heretofore had occasion to discuss the applicability of this constitutional provision to both criminal and civil cases (see dissenting opinions, People v. Tarantino, 45 Cal.2d 590, 604 [290 P.2d 505], and Buckley v. Chadwick, 45 Cal.2d 183, 203, 208 [288 P.2d 12, 289 P.2d 242]), and I will not here take the time to review the authorities or discuss their applicability to the case at bar. I cannot refrain from stating that I positively do not agree with the holding of the majority here “that generally, error involving the infringement of a constitutional right, like any other error, *840requires 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.” On the contrary, it is my positive and unqualified opinion that it was not the intention of the framers of section 4% of article VI of our Constitution or of the people who voted for the adoption of said provision, that said section could be invoked for the purpose of affirming a judgment in either a criminal or civil case where the appealing party had been denied a constitutional or statutory right, because such a holding would have the effect of reading into said provision the repeal of all constitutional provisions which were adopted for the purpose of establishing a system for the administration of justice which the courts of this state are required to follow if we are to have a government of law and not of men. In other words, it is my concept that before a conviction of a criminal offense may be sustained, it is necessary that the constitutional and statutory provisions which outline the procedure to be followed, must be complied with, and it cannot be said that guilt has been established in accordance with law if the accused has been denied any of the rights guaranteed to him by the Constitution and statutes of this state.
It is perfectly obvious to me that the concept of the framers of section 4% of article VI of our Constitution was that technical errors in instructions to the jury or in the admission or rejection of evidence or errors in pleading or procedure which could not affect the result in a case should not be relied upon as a ground for the reversal of a judgment. In fact this is what the plain language of the section states, and I am in full accord with this concept. However, the section has not been so construed by this court. In fact, the section has been invoked to affirm judgments of conviction where the errors complained of clearly and obviously affected the substantial rights of the defendant (see People v. Tarantino, 45 Cal.2d 590, 604 [290 P.2d 505]). To my mind it is perfectly obvious that this salutary provision of our Constitution has been applied in recent years in such a manner that any judgment of conviction may be upheld regardless of the grievous errors which may have been committed by the trial court because it was the view of four members of this court *841that the conviction should be upheld regardless of the effect of such errors; in other words, it is a matter of the philosophy of the individual members of this court rather than the interpretation of the constitutional provision here involved.
A reading of the majority opinion here demonstrates that whenever the majority desires to invoke section 4% of article VI for the purpose of affirming a judgment of conviction, it simply resorts to double-talk and finally arrives at the conclusion that the judgment should be affirmed. This is precisely what has happened in the case at bar.
For the reasons stated in the opinion of the District Court of Appeal hereinbefore cited, I would reverse the judgment and grant defendant a new trial.
Appellant’s petition for a rehearing was denied August 1, 1956. Carter, J., and Schauer, J., were of the opinion that the petition should be granted.