Purvis

I dissent. In my opinion the mandatory provisions of article VI, section 4%, of the California Constitution are here applicable, to wit, that no judgment shall be set aside in any ease on the ground of (a) misdirection of the jury, (b) improper admission or rejection of evidence, (c) error as to any matter of pleading, or (d) error as to any matter of 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.

The majority reverse the judgment, because (in their language) “it is reasonably possible that such errors may and could have tipped the scales against defendant. Such errors, therefore, must be held to have been prejudicial.” (Italics added.)

I must refrain from joining the majority in reversal, because I cannot say “after an examination of the entire cause, including the evidence .. . [that I am] of the opinion that the error [s] complained of ... [have] resulted in a miscarriage of justice.”

Schauer, J., concurred.

Respondent’s petition for a rehearing was denied September 18, 1963. Schauer, J., and MeComb, J., were of the opinion that the…

Appellant was charged with having murdered (Pen. Code, § 187) Hazel Wilson on December 19, 1957. He was also charged with the prior conviction (September 1950) of the second degree murder of his then wife, Eleanor Purvis. He admitted the prior, and entered pleas of not guilty and not guilty by reason of insanity. A jury found him guilty of murder in the first degree, found that he was sane at the time of the commission of the crime, and fixed the penalty at death. On appeal this court affirmed the conviction of first degree murder, but reversed and remanded on the sole question of penalty (People v. Purvis, 52 Cal.2d 871 [ 346 P.2d 22 ]). On retrial, the second jury also returned a verdict of death. On review, that judgment was again reversed, and the case again remanded for retrial of the penalty issue (People v. Purvis, 56 Cal.2d 93 [ 13 Cal.Rptr. 801 , 362 P.2d 713 ]). On the third trial of that issue the extreme penalty was again imposed. Motions for a new trial, and for a reduction of the penalty to life imprisonment, were made and denied. The appeal from this judgment is automatic. (Pen. Code, §1239, subd. (b).)

*327 Appellant’s first marriage, in the State of Washington,…