Fryer

Due to a division of opinion of the justices of the third appellate district, this appeal was transferred to this court for decision. With the records of the case came the following opinion of Chipman, Presiding Justice, which is adopted as the opinion of this court, and for the reasons therein given the judgment and order appealed from are reversed:

Defendant was convicted of the murder in the first degree of one Lem Sing and was sentenced to life imprisonment. He appeals from the judgment and from the order denying his motion for a new trial.

The deceased was a Chinaman engaged in placer mining near the town of Weaverville, Trinity County. The evidence showed that deceased was wantonly murdered by defendant for the purposes of robbery. It is not contended that the evidence was insufficient to justify the verdict.

It appears that one Ray Glenn was complained against for the murder of this same person, Lem Sing, and that at his preliminary examination this defendant was called as a witness, sworn, and examined, and he then and there testified to facts, in response to questions propounded by the district attorney, which incriminated himself; that previous to his testifying he…

I dissent. I agree with Mr. Justice Hart, of the district court of appeal, as to the construction that should be given to section 1324 of the Penal Code, and concur generally in the opinion written by him and concurred in by Mr. Justice Burnett. That opinion is as follows:

I therefore think that the judgment and the order appealed from ought to be affirmed.

Lawlor, J., and Lorigan, J., concurred.

Rehearing denied.