O'Bryan

The defendant, convicted of murder of the first degree and sentenced to life imprisonment, appeals from the judgment and from an order denying' his motion for a new trial.

The appellant does not question the sufficiency of the evidence to support the verdict, nor does he attack the instruc tians given to the jury. The only errors assigned consist of certain rulings admitting evidence over the objection of the defendant. A brief statement of the case presented by the people will suffice for the understanding of the points so raised.

Defendant was a member of a labor organization which had declared a strike against certain employers, including the Llewellyn Iron Works. John D. Avila, the deceased, and one Molina, were nonunion workmen and were working for the Llewellyn Iron Works in the construction of oil tanks near the city of San Luis Obispo. Early in the morning of December 17, 1910, Avila and Molina, after spending the preceding evening in the city, started to walk back to their lodgings, which were at the place where the tanks were being erected. After they had gone some distance, they were overtaken by the defendant, who, with two companions, was following them. The…

concurring.—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% 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 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…