Lisenba

This cause is before this court on rehearing. In the former opinion (People v. Lisenba, (Cal.) 89 Pac. (2d) 39 ) every point then raised by appellant was discussed. On further consideration of this appeal, we are of the opinion that the proper conclusions were reached in said former opinion on all points then raised. We therefore adopt said opinion as a part of this opinion upon rehearing. Said former opinion follows:

*435 In the briefs filed before the former opinion was rendered, appellant made no claim that any error had been committed in the giving or refusing of instructions to the jury. Appellant filed his petition for rehearing but made no such claim therein. Such claim was first advanced in a supplemental brief filed by appellant shortly before the oral argument on rehearing. An appellate court is ordinarily justified in ignoring points so tardily raised but, owing to the nature of this case, we have reviewed the entire charge to the jury, giving particular attention to appellant’s claim of error with respect thereto.

The challenged instruction was one of several given on the subject of the necessity for corroboration of testimony of an accomplice. (Pen. Code, see.…

I dissent for the reasons stated in the dissenting opinion filed in this action at the time of the rendition of the former opinion. This dissent is set out in full in volume 89 (2d) of the Pacific Reporter at pages 54 to 108 thereof. (People v. Lisenba.)

Houser, J., concurred.

Rehearing denied. Curtis, J., and Houser, J., voted for a rehearing. Carter, J., did not participate.

THE COURT.

This cause is before this court on rehearing. In the former opinion (People v. Lisenba, (Cal.) 89 PaCal.2d 39) every point then raised by appellant was discussed. On further consideration of this appeal, we are of the opinion that the proper conclusions were reached in said former opinion on all points then raised. We therefore adopt said opinion as a part of this opinion upon rehearing. Said former opinion follows:

"In an indictment returned by the grand jury of Los Angeles county, Major Raymond Lisenba (also known as Robert S. James and who will be referred to as the defendant), and one Charles H. Hope were jointly charged with the murder of Mary Emma James, defendant's wife. The alleged homicide was perpetrated on or about August 5, 1935, and remained undetected for a period of several months. In fact, the indictment was not returned until May 6, 1936. Thereafter, the accomplice Hope entered a plea of guilty to the charge and at the time of defendant's trial was awaiting sentence. He has been since sentenced to life imprisonment. Hope was the principal witness for the prosecution upon the defendant's trial, at which trial it was the theory of the People that…