[76]TRAYNOR, C. J. I dissent.
The record establishes that the instruction and comment on defendant’s failure to testify were prejudicial under Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]
A jury found defendant guilty of the robbery of an ice cream company and the attempted murder of the manager, Walter Williams. The robber, who was masked, carried a sawed-off shotgun and threatened to use it during the course of the robbery. lie warned Williams and Brown, the assistant manager, not to follow him out of the plant. Williams did so, however, and was shot in the leg by pellets from a shotgun. Although Williams could not see his assailant, who was hidden behind an automobile a hundred feet away, he believed that the fleeing robber fired the shot.
Brown gave police officers a description of the robber, and bystanders gave them a description of the suspect’s automobile. Approximately 40 minutes after the robbery, a police unit saw a ear answering the description given by the bystanders. The driver was wearing a distinctive red vest, white shirt, and dark tie. The officers pursued the car, and during the chase the driver fired a shotgun at them. They followed the ear until it was driven to a dead end and abandoned. They arrested defendant not far from the abandoned car. He was wearing a red vest and white shirt and had a dark tie in his hand. The officers identified him as the driver of the ear. They found a sawed-off shotgun and the proceeds of the robbery in the ear, which was registered in defendant’s name.
Although defendant was linked to the car and the car was linked to the robbery, the only direct link to the commission of the robbery and the attempted murder was the doubtful identification of defendant by Williams and Brown.
Williams identified defendant as the robber at the trial, but the identification could have been disbelieved or deemed unreliable by the jury. He admitted under cross-examination that he could not remember any distinctive feature of the robber or his clothing. The robber was masked, and Williams did not supply the officers with any usable description of him.
Brown’s identification of defendant as the robber could ' also have been disbelieved or deemed unreliable by the jury. He described the robber as wearing tan.pants and having dark hair. Defendant lias blond hair and was wearing dark [77]pants when he was arrested. Brown admittedly had less opportunity than Williams had to see the robber during the course of the robbery. Brown did not mention the distinctive red vest, white shirt, and dark tie, described by the officers and used by them as a basis for identifying defendant as the driver of the ear. Moreover, his description of the robber did not aid the officers in their pursuit.
Brown identified defendant in a police showup, but this identification could also have been disbelieved or deemed unreliable by the. jury. Defendant was dressed differently from the others at the showup; he wore coveralls, but the other participants wore street clothing. (Cf. United States v. Wade, 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926] ; Gilbert v. California, 388 U.S. 263 [18 L.Ed.2d 1178], 87 S.Ct. 1951] ; Stovall v. Denno, 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967].)
Defendant’s identification by Williams and Brown was subject to doubt on another ground. Defendant was a stranger to the ice cream company’s plant, and neither Williams nor Brown had ever seen him before. The robber, however, was familiar with the plant. He called Williams “Walt,” a name used only by Williams’ associates; he knew that the area where the company safe was kept was called the “safe room”; and he knew the location of the “safe room.” This evidence that the robber was an insider or had a co-conspirator who was an insider casts considerable doubt on defendant’s being the robber. There may have been two men involved, one who committed the robbery and attempted murder and another who either waited in the car or joined the robber later. If the robber left the car in the possession of another man during the 40-minute period before it was seen by the police unit, that circumstance would explain the inaccurate descriptions of the clothing and hair color of the robber as compared with the person ultimately arrested.
At the outset of his argument the prosecutor stated that the weak point in his case was the lack of clear identification of defendant as the robber.1 He admitted the difficulty of inferring that because defendant was linked to the ear and the car was linked to the robbery, defendant committed the robbery and attempted the murder of Williams. To bolster his case, [78]the prosecutor relied heavily on defendant’s failure to take the stand and deny that he was the robber and attempted murderer. He told the jury that defendant’s failure to deny or explain the facts in the ease allowed them to consider as true the inferences most favorable to the prosecution. Each time the prosecutor’s argument faltered he relied heavily on comment on defendant’s silence, and the court’s instruction expressly sanctioned the drawing of adverse inferences therefrom by the jury.2
Although the prosecutor might have proceeded on the theory that defendant was either the actual robber or an accessory who drove the getaway car, he chose to try the case solely on the more difficult theory that defendant personally committed the robbery and the attempted murder. Moreover, he admitted that the state’s case left room for doubt as to defendant’s guilt. Since defendant presented no evidence, his defense was necessarily based on the weakness of the eyewitness identification and the gaps in the circumstantial evidence linking him to the actual commission of the robbery. His [79]counsel pointed out to the jury that defendant was charged with actually committing the robbery and attempted murder, and he urged that the evidence established a reasonable doubt. He thus relied on the fixed procedural requirement of proof beyond a reasonable doubt.
It is for the jury to determine whether the balance of probabilities excludes a reasonable doubt. Unless that balance appears from the evidence so overwhelming that no reasonable juror could entertain a reasonable doubt, argument and instruction “that among the inferences that may be reasonably drawn from [the evidence] those unfavorable to the defendant are the more probable,”3 necessarily vitiate the defense of reasonable doubt. Under such instruction and argument doubts need not be resolved in favor of the defendant but may be resolved in favor of the prosecution, thereby enhancing the probabilities of a guilty verdict. By diminishing the fixed procedural requirement of proof beyond a reasonable doubt, the error deprived defendant of a substantial right and denied him a fair trial. (Bollenbach v. United States, 326 U.S. 607, 614 [90 L.Ed. 350, 355, 66 S.Ct. 402] ; Bihn v. United States, 328 U.S. 633, 637 [90 L.Ed. 1484, 1487-1488, 66 S.Ct. 1172] ; see also Boatright v. United States, 105 F.2d 737, 740.) Moreover, since it served to stifle the doubts that might reasonably have been engendered by the inconsistencies in the prosecution’s cirumstantial case, it may even have carried decisive weight with the jury. Accordingly, the Attorney General has not established beyond a reasonable doubt that the error did not contribute to the result. (Chapman v. California, 386 U.S. 18, 24, 26 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824].)
The majority' opinion states that “on the compelling record which we have summarized . . . we can conceive of no reasonable possibility that this jury could have reached any verdict other than one of guilt even if the prohibited comments had never been uttered.” Even if this factual assumption were correct, it is one that should never be allowed to undermine our commitment to procedural fairness. ‘' Are we then to disregard errors no matter how substantial, if upon a review of the evidence we are satisfied with the verdict of the jury ? Such a course will simply mean in the long run the abolishing of all forms of law taught by experience to be necessary to the protection of the innocent.” (People v. Marcndi, 213 N.Y. [80600], 619 [107 N.E. 1058, 1064] ; People v. Nuzzo, 294 N.Y. 227, 235-236 [62 N.E.2d 47, 51].) Verdicts that may be based on constitutional error must not be allowed to stand. (Robinson v. California, 370 U.S. 660, 665 [8 L.Ed.2d 758, 762, 82 S.Ct. 1417] ; Williams v. North Carolina, 317 U.S. 287, 292 [87 L.Ed. 279, 282, 63 S.Ct. 207, 143 A.L.R 1273] ; Stromberg v. California, 283 U.S. 359, 368 [75 L.Ed. 1117, 1122, 51 S.Ct. 532, 73 A.L.R. 1484].)
In our own cases we have stated that ‘ ‘ [t] he fact that a record shows a defendant to be guilty of a crime does not necessarily determine that there has not been a miscarriage of justice.” (People v. Mahoney, 201 Cal. 618, 627 [258 P. 607] [disparaging comments by judge]; see also People v. Conley, 64 Cal.2d 310, 319-320 [49 Cal.Rptr. 815, 411 P.2d 911] [right to jury trial on every significant issue] ; People v. McKay, 37 Cal.2d 792, 798-800 [236 P.2d 145] [unfair pretrial publicity] ; People v. Sarazzawski, 27 Cal.2d 7, 10-11 [161 P.2d 934] [various errors causing denial of a fair trial] ; People v. Patubo, 9 Cal.2d 537, 542-543 [71 P.2d 270, 113 P.2d 1303] [disparaging comments by judge] ; People v. Muza, 178 Cal.App.2d 901, 913-914 [3 Cal.Rptr. 395], cert.den. 369 U.S. 839 [7 L.Ed.2d 843, 82 S.Ct. 869] [remarks of trial judge] ; People v. Duvernay, 43 Cal.App.2d 823, 828-831, 111 P.2d 659] [misconduct of prosecution].) Similarly in People v. Spencer, 66 Cal.2d 158, 163 [57 Cal.Rptr. 163, 424 P.2d 715], the court, faced with a nonprejudicial confession under the rule of People v. Cotter, 63 Cal.2d 386, 398 [46 Cal.Rptr. 622, 405 P.2d 862], refused to rest “afSrmanee of the judgment solely upon our evaluation of the minor effect of the defendant’s confession upon the jury; we must still weigh its impact upon defendant’s trial.” In following Fahy v. Connecticut, 375 U.S. 85 [11 L.Ed.2d 171, 84 S.Ct. 229], and Chapman v. California, supra, 386 U.S. 18, we were concerned with procedural fairness, with the integrity of the judicial process, as well as with the outcome of the ease. It bears emphasis that we cannot adhere to rules that we would adopt were the final responsibility ours (see People v. Modesto, 62 Cal.2d 436, 447-454 [42 Cal.Rptr. 417, 398 P.2d 753] ; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]), but must faithfully adhere to the United States Constitution as interpreted by the United States Supreme Court.
By focusing solely on the outcome of the case, the majority opinion misconceives the purpose of the harmless error rule as it has developed in the federal courts. Chapman stands at the [81]end of a long line of Supreme Court cases determining the standards for harmless error in criminal cases,4 in which the court benefited from a remarkable dialogue in the Second Circuit5 whose principal participants were Learned Hand and Jerome Prank. Since the earlier federal standards were less favorable to defendants than the Fahy-Chapman standard, except for those errors deemed automatically prejudicial, error that would have been reversible under the earlier eases is a fortiori reversible now. Under those cases the majority opinion in the present case errs by independently determining guilt or innocence (Weiler v. United States. 323 U.S. 606, 611 [89 L.Ed. 495, 499, 65 S.Ct. 548, 156 A.L.R. 496]), impliedly speculating on the possibility of reconviction (Kotteakos v. United States, supra, 328 U.S. 750, 763 [90 L.Ed. 1557, 1565-1566]), and considering the evidence without the error and thereby minimizing the influence of the error on the verdict (Bihn v. United States, supra, 328 U.S. 633, 637 [90 L.Ed. 1485, 1488] ; Fahy v. Connecticut, supra, 375 U.S. 85, 88-92 [11 L.Ed.2d 171, 174-176]).
Review of the development of the harmless error rule demonstrates that it cannot be lightly invoked to cure constitutional error. Roscoe Pound, an early advocate of harmless error reform in the United States, attacked the “Exchequer rule”6 that required reversal for all errors and stated that [82]'‘ the worst feature of American procedure is the lavish granting of new trials.” (Pound, The Causes of Popular Dissatisfaction with the Administration of Justice (1906) 29 A.B.A. Rep. 395, 413 ; see also (1908) 33 A.B.A.Rep. 542, 545, fn. 1 [bibliography of other contemporary criticism].) In 1907 the American Bar Association established a Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation. ((1907) 31 A.B.A. Rep. 505.) The Special Committee recommended the enactment of a statute ((1908) 33 A.B.A.Rep. 542, 550) that was introduced in Congress in 1908 and reintroduced in 1909 in a slightly modified form (S. 4568; H.R. 14,552). A supporting brief stated that the purpose of the bill was to stop '' reversals for technical defects in the procedure below.” ((1910) 35 A.B.A.Rep. 624.) Contemporaneously with the hearings on the A.B.A. “technical error” bill in Congress, Senator A. E. Boynton of the California Legislature proposed an amendment to the California Constitution substantially the same as the A.B.A. bill.7 The Legislature adopted the proposed amendment, and it was placed on the ballot. The official argument to the voters describes the reasons‘for the reform movement in the United States and presents examples of technical errors complained of by the reformers.8 The California consti[83]tutional amendment was adopted on October 10, 1911, and the federal harmless error rule was adopted by Congress in 1919. 9 Based on this history the Supreme Court stated that the federal harmless error statute was intended “to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict.” (Bruno v. United States, supra, 308 U.S. 287, 293-294 [84 L.Ed. 257, 260-261].) “The ‘technical errors ’ against which Congress protected jury verdicts are of the kind which led some judges to trivialize law by giving all legal prescriptions equal potency. See Taft, Administration of Criminal Law (1905) 15 Yale L.J. 1, 15. Deviations from formal correctness do not touch the substance of the standards by which guilt is determined in our courts, and it is these that Congress rendered harmless. ...” (Bollenbach v. United States, 326 U.S. 607, 615 [90 L.Ed. 350, 355, 66 S.Ct. 402].)
The Supreme Court has construed the federal rule to place the burden on the prosecution to show that “substantial rights” were not affected by the error. (Kotteakos v. United, States, supra, 328 U.S. 750, 760 [90 L.Ed. 1557, 1564].) In California, on the other hand, the court has consistently placed the burden on the appellant attacking the verdict. (People v. Watson, supra, 46 Cal.2d 818, 836-838.) Since the [84]original focus of harmless error reform was on technical error, it has always been recognized that some errors were reversible regardless of the guilt or innocence of the defendant. (See Gideon v. Wainwright, 372 U.S. 335, 344 [9 L.Ed.2d 799, 805, 83 S.Ct. 792, 93 A.L.E.2d 733] ; Tumey v. Ohio, 273 U.S. 510, 523 [71 L.Ed. 749, 754, 47 S.Ct. 437, 50 A.L.R. 1243] ; People v. Conley, supra, 64 Cal.2d 310, 319-320 ; People v. McKay, supra, 37 Cal.2d 792, 798-800 ; People v. Sarazzawski, supra, 27 Cal.2d 7, 10-11 ; People v. Patubo, supra, 9 Cal.2d 537, 542-543 ; People v. Mahoney, supra, 201 Cal. 618, 627 ; People v. Muza, supra, 178 Cal.App.2d 901, 913-914, cert.den. 369 U.S. 839 ; People v. Duvernay, supra, 43 Cal.App.2d 823, 828-831.) The Chapman case establishes, however, that Griffin error is not necessarily prejudicial.
To affirm the judgment under the rule set forth in the Chapman case the court must “be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” (386 U.S. at p. 24 [17 L.Ed.2d at p. 711].) We must be able to say that the Attorney General “has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s instruction did not contribute to” defendant’s conviction. (386 U.S. at p. 26 [17 L.Ed.2d at p. 711].) This language is susceptible of two interpretations, and the Chapman opinion lends support to both.
It may mean only that the court must believe beyond a reasonable doubt that the result would have been the same in the absence of the error. Under this view, if the court concludes beyond a reasonable doubt that no reasonable jury could have found the defendant innocent on the same record minus the error, it should affirm. This approach is the one this court has adopted in interpreting the California harmless error rule (Cal. Const., art. YI, § 13), although our standard for affirmance is not proof beyond a reasonable doubt that the result would have been the same, but the absence of a showing that it is reasonably probable that the result would have been different in the absence of the error. (People v. Watson, supra, 46 Cal.2d 818, 836.) Watson makes clear, of course, that “reasonably probable” does not mean more probable than not. It means only that there appear some substantial chance greater than a mere possibility that the result would have béen different in the absence of the error. Thus the court was careful to point out that a reversal is required if it cannot be determined whether or not the error affected the result, for in such ease there “exists ... at least such an [85]equal balance of reasonable probabilities” that “the court is of the opinion ‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (46 Cal.2d at p. 837.)
There is language in Chapman that indicates that the court was concerned with the possibility that the result would have been different in the absence of the error. It seems more likely, however, that the court deemed a showing beyond a reasonable doubt that the result would not have been different as only the first step in establishing that a constitutional error was not prejudicial. Thus it contrasted “small errors or defects that have little, if any, likelihood of having changed the result of the trial” with errors that “ ‘affect substantial rights’ ” of a party, and it pointed out that “An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless.” (Chapman v. California, 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 827-828].) Moreover, it expressly rejected this court’s reliance on overwhelming evidence to establish harmless error, a rejection that can be explained only on the theory that a substantial error that might have contributed to the result cannot be deemed harmless regardless of how clearly it appears that the jury would have reached the same result by an error-free route had the erroneous route been denied it. Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution’s case may have played a substantial part in the jury’s deliberation and thus contributed to the actual verdict reached, for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result. (Robinson v. California, supra, 370 U.S. 660, 665 [8 L.Ed.2d 758, 762] ; Williams v. North Carolina, supra, 317 U.S. 287, 292 [87 L.Ed. 279, 282] ; Stromberg v. California, supra, 283 U.S. 359, 368 [75 L.Ed. 1117, 1122].)
The view that Chapman requires the state to show not only that the result would have been the same absent the error, but also that the error could not have played any substantial part in the jury’s reaching its verdict, finds support in earlier Supreme Court decisions. In determining whether an error is substantial, i.e., whether it affected a substantial right of the defendant, the court has focused on the part the error may have played at the trial. Once it appears that it was a sub[86]stantial part of the prosecution’s case, reversal is required. Neither the court’s own view of the defendant’s guilt nor its conviction that the jury would have reached the same result in the absence of the error can then save the judgment. (Bihn v. United States, supra, 328 U.S. 633, 637 [90 L.Ed. 1484, 1488] ; Kotteakos v. United States, supra, 328 U.S. 750, 763 [90 L.Ed. 1557, 1565-1566] ; Bollenbach v. United States, 326 U.S. 607, 613-614 [90 L.Ed. 350, 354-355, 66 S.Ct. 402] ; Weiler v. United States, supra, 323 U.S. 606, 611 [89 L.Ed. 495, 499] ; Bruno v. United States, 308 U.S. 287, 294 [84 L.Ed. 257, 260-261, 60 S.Ct. 198].)
In the present case, as in Chapman, the comments and instruction on defendant’s silence constituted a substantial part of the prosecution’s ease. It served to make defendant a witness against himself by using his silence to stifle the doubts that might have been engendered by the inconsistencies in the prosecution’s ease. (Griffin v. California, 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229].) It denied defendant a substantial right, for it served to deprive him of his only defense. Under these circumstances the Attorney General has not established beyond a reasonable doubt that the verdict would have been the same in the absence of error. A fortiori, he has not established beyond a reasonable doubt that the erroneous comment and instruction did not in fact contribute to the result.
Peters, J., concurred.
''In this ease I am not going to discuss the elements. The crime was committed. The fact is undisputed that there was a robbery and there was an attempted murder. There is no question about that at all. The only failure is—we haven’t proved that the defendant was responsible.”
“ Remember, where a defendant fails to testify and there are facts within his own knowledge, facts within his own knowledge which he cannot explain or deny such as the facts in this case, he can very well say, ‘I didn’t go into this place. Ton have got the wrong man.’ In fact that is probably the argument you will hear, but he hasn’t even denied, or explained any aggregated circumstances. So you may take his failure to explain all that as indicating they are true. . . .
“What kind of person are we dealing with in this case? He hasn’t come up here to deny any of this. . . .
“Folks, I think that I usually talk about an hour, but in this case the evidence is so overwhelming, yet the evidence is so aggravating, so terrifying, and he, as I have been saying, he hasn’t wanted even to get up here and say, ‘I didn’t do it.’ He is not guilty, but he could say that much. . . .
“We connect the robbery through the identification of the property of yours. How did I get it? He didn’t even take the witness stand. And he explained this was his car. He wasn’t driving it. And to explain how this money got in there, and what would you say if you found money like that in my car just soon after the robbery? What would you think I was up to? Going out for a picnic or something like that? This is proof of a robbery, in the position of a robber and murderer very soon after the pítense. . . .
“And the comment which Mr. Arias [defendant’s counsel] made was beyond the evidence. There is no question that Mr. Ross didn’t walk into that place. There is no evidence by him saying that he did not walk into this place. He didn’t offer any testimony at all.”
The court instructed the jury concerning the defendant’s failure to testify as follows: “As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable. ’ ’
This statement is from the trial judge’s charge. See footnote 2, supra.
See, e.g., Horning v. District of Columbia, 254 U.S. 135 [65 L.Ed. 185, 41 S.Ct. 53] ; Sinclair V. United States, 279 U.S. 749 [73 L.Ed. 938, 49 S.Ct. 471, 63 A.L.R. 1258] ; Aldridge v. United States, 283 U.S. 308, 315 [75 L.Ed. 1054, 1058, 51 S.Ct. 470, 73 A.L.R. 1203] ; [dissenting opinion] ; Berger v. United States, 295 U.S. 78 [79 L.Ed. 1314, 55 S.Ct. 629] ; Bruno v. United States, 308 U.S. 287 [84 L.Ed. 257, 60 S.Ct. 198] ; United States v. Socony-Vacuum Oil Co., 310 U.S. 150 [84 L.Ed. 1129, 60 S.Ct. 811] ; Weiler v. United States, 323 U.S. 606 [89 L.Ed. 495, 65 S.Ct. 548, 156 A.L.R. 496] ; Bollenbach v. United States, 326 U.S. 607 | 90 L.Ed. 350. 66 S.Ct. 402] ; Bihn v. United States, supra, 328 U.S. 633 ; Kotteakos v. United States, 328 U.S. 750 [90 L.Ed. 1557, 66 S.Ct. 1239 | ; Fiswick v. United States, 329 U.S. 211 [91 L.Ed. 196, 67 S.Ct. 224] ; Krulewitch v. United States, 336 U.S. 440 [93 L.Ed. 790, 69 S.Ct. 716].
United Stales v. Berger, 73 F.2d 278, revd. 295 U.S. 78 [79 L.Ed. 1314, 55 S.Ct. 629] ; United States v. Bruno, 105 F.2d 921, revd. 308 U.S. 287 184 L.Ed. 257, 60 S.Ct. 198] ; United States V. Liss, 137 F.2d 995 ; United States v. Mitchell, 137 F.2d 1006 ; United States v. Bollenbach, 147 F.2d 199, revd. 326 U.S. 607 [90 L.Ed. 350, 66 S.Ct. 402] ; United States v. Lekacos, 151 F.2d 170, revd. 328 U.S. 750 [90 L.Ed. 1557, 66 S.Ct. 12391 ; United States v. Rubenstein, 151 F.2d 915 ; United States v. Bennett, 152 F.2d 342, revd. sub. nom., Bihn v. United States, 328 U.S. 633 [90 L.Ed. 1485, 66 S.Ct. 1172] ; United States v. Antonelli Fireworks Co., 155 F.2d 631 ; United States v. Krulewitch, 167 F.2d 943, revd. 336 U.S. 440 [93 L.Ed. 790, 69 S.Ct. 716].
Crease V. Barrett, 1 C.M. & R. 933, 149 Eng. Rep. 1353 ( Ex. 1835). See generally 1 Wigmore, Evidence, § 21 (3d ed. 1940). A harmless error [82]rule Iiad been prevalent before that time “as there could not be a now trial in felony, such a conviction ought not to be set aside [fn. omitted], because some other evidence had been given which ought not to have been received.” (Rex v. Ball, Russ & Ry. (1807) 132, 133, 168 Eng. Rep. 721.) The rule requiring per se reversals became the prevailing rule in this country. (Wigmore, Evidence, supra, § 21.)
“ No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or 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. ’ ’ (2 Cal. Stats. 1911, Res. Ch. 36, p. 1798 (Sen. Const. Amend. No. 26).) The language in the A.B.A. bill and the California constitutional amendment was suggested by Order 29, rule 6, of the Buies of the English Supreme Court of judicature. (See (1910) 35 A.B.A. Rep. 614, 615.)
Statement of Senator A. E. Boynton: “. . . The absurd lengths to which courts have gone in the reversal of eases for immaterial errors is shown by a recital of a few examples: In Missouri a case was reversed and the prisoner escaped conviction because the indictment alleged the deceased ‘instantly died’ instead of charging according to the ancient formula that he ‘ did then and there die. ’ In a Texas case the elimination of the letter ‘r’ from the word ‘first’ saved a murderer from the gallows, when his guilt was absolutely determined. In our own state a conviction for murder was set aside because the indictment failed to state that the man killed was a human being. . . .
The Missouri case was a commonly used example during the reform [83]period and is cited and discussed in Kotteakos v. United States, supra, 328 U.S. 750, 760, fn. 14 [90 L.Ed. 1557, 1564],
Statement of State Senator E. S. Birdsall:". . . The supreme court lias held in 21 Cal. 344 that it is a fatal omission to fail to state in an indictment for robbery that the property taken is not the property of the person charged, although the very word ‘robbery’ itself conclusively implies this. In 56 Cal. 406 a conviction was set aside because the letter ‘n’ was accidentally omitted from the word ‘larceny,’ though it is probable that no person in the wide world could have had any doubt as to the word intended. ... In 62 Cal. 309 a conviction of murder was reversed because the trial court permitted a surgeon who had examined the wounds to testify as to the probable position of the deceased when the fatal shot was fired. This was in line with the doctrine announced in 47 Cal. 114 that ‘every error in the admission of testimony is presumed to be injurious unless the contrary clearly appears. ’ Trial judges of long experience declare that it is wholly beyond human skill for the most able and conscientious judge, in the course of a long and busy trial extending over days or weeks to avoid trifling inaccuracies now and then in the thousand and one rulings that they are compelled to make on the spur of the moment. ...”
28 United States Code section 2111 now provides: ‘‘On the hearing of an appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties. ’ ’ Federal Hules of Criminal Procedure, rule 52, subdivision (a), provides: ‘‘Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. ’ ’