I concur in the judgment and order of affirmance in this case and in the views expressed by Mr. Justice Sloss in the foregoing opinion except as to the construction of section 4 1/2 of article VI of the constitution and its application under the evidence. I am of the opinion that neither the construction nor application of this section is necessarily involved in the disposition of this appeal, and, therefore, the discussion upon it is obiter and the scope of *Page 69 the section may be better left until the question is squarely presented. It was, as pointed out in the opinion, error for the court to have admitted in evidence on behalf of the state the statements made by the defendant before the grand jury. This was in violation of the constitutional right of the defendant not to "be compelled in any criminal case to be a witness against himself." If the defendant had not subsequently become a witness on the trial in his own behalf but had stood squarely upon the error of the court in permitting evidence of those statements, I am not prepared just now to say that against this violation of a constitutional right the section of the constitution could be interposed. But here the defendant did not stand upon the error. He became subsequent to its admission a witness in his own behalf and gave testimony in chief upon such matters as warranted the district attorney upon cross-examination in covering all the matters concerning which he had made statements before the grand jury. This district attorney was justified in cross-examining him as to all these matters and the testimony of the defendant respecting them was substantially a reiteration of the statements he had made before the grand jury. This being true, whatever error was committed by the court in the first instance was cured by this subsequently properly elicited testimony covering the same matters. The original prejudicial character as error was obviated by this subsequent confirmatory evidence of the defendant and under the general rule which has always obtained here the error became harmless and could not be successfully invoked by defendant to obtain a reversal. This being the general rule applied before the constitutional amendment referred to was made, it is as directly applicable now since the amendment, and the assignment of the ruling as error was without merit by virtue of the general rule and in my opinion, therefore, it is unnecessary obiter to construe or apply the amendment in disposing of this alleged error. The general rule to which we have thus referred is one to which this court long since has given succinct utterance. Thus in People v. Brotherton, 47 Cal. 388, 404, where the question before this court was the ruling of the trial court upon a matter of evidence, it is said: "That a technical error has intervened at the trial is, therefore, not of itself enough to warrant our interference. The prisoners must go further, *Page 70 and affirmatively show in some way that their substantial rights have been injuriously affected by the error complained of." That the principle here laid down has since been consistently adhered to and never once departed from will appear from the following cases in each one of which it was argued on behalf of the defendant that error prejudicial to him arose under the court's rulings receiving or rejecting evidence, and in each one of which this court refused to support the contention: People v. Barnhart,59 Cal. 381; People v. Chuck, 78 Cal. 317, [20 P. 719]; People v. Nelson, 85 Cal. 425, [24 P. 1006]; People v. Daniels,105 Cal. 262, [38 P. 720]; People v. Clark, 106 Cal. 33, [39 P. 53]; People v. Maroney, 109 Cal. 278, [41 P. 1097]; People v.Barthleman, 120 Cal. 15, [52 P. 112]; People v. Wynn, 133 Cal. 72, [65 P. 126]; People v. Glaze, 139 Cal. 162, [72 P. 965].
Melvin, J., and Henshaw, J., concurred.