Furnish

I concur in the judgment reversing the conviction of defendant under the application of section 4½, article VI, of the California Constitution. (See People v. Watson, 46 Cal.2d 818, 836 [ 299 P.2d 243 ], and Fahy v. Connecticut, 375 U.S. 85, 86-87 [ 84 S.Ct. 229 , 11 L.Ed.2d 171 ].)

McComb, J., and Schauer, J., * concurred.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

A jury found defendant guilty of murder of the second degree, and he has appealed from the ensuing judgment.

The decedent, Star Furnish, was the 20-month old daughter of defendant and his wife Nancy. On the morning of May 10, 1962, as was his custom, defendant left the house for *513 work at 6 :30. After serving breakfast to three older children later that morning Nancy looked briefly into Star’s room on two occasions. Thinking that the child was asleep and, assuming that she might not feel well, Nancy concluded it best not to awaken her.

Shortly before 1 p.m. Nancy again went into the room and found Star with a plastic bag over her head. She ripped the bag from Star’s face, and immediately telephoned a doctor and the defendant.

The doctor noticed that rigor mortis had set in, and although he formed an opinion that Star had died at least six to twelve hours earlier, he mistakenly told police officers that she had died two to six hours earlier. At about 2 p.m. defendant and Nancy were taken to the police station and questioned by officers. At 5 p.m. Nancy was arrested and booked on a charge of homicide, and defendant was released.

In the Furnish kitchen police officers found a…