I concur in all cases but People v. Shell Oil Co. In the latter ease I dissent. The majority opinion relies on People v. Kane (1946), 27 Cal.2d 693 [ 166 P.2d 285 ]. This case (a four to three decision) is not presently the law for the following reasons:

1. It is contrary to the later case of People v. Reed (1952), 38 Cal.2d 423, 430 [ 240 P.2d 590 ] : “The court’s instruction on the presumption of innocence and defining reasonable doubt followed the language of section 1096 of the Penal Code. By additional instructions, the court explained the effect of the presumption and stated the doctrine of reasonable doubt.

“These instructions, Reed complains, are only general. No instruction was given to the effect that each element of the crime must be proved beyond a reasonable doubt. But the law expressly specifies that the court may read section 1096 of the Penal Code and need not give any other instruction on the presumption of innocence or reasonable doubt. (Pen. *880 Code, § 1096a.) Considering all of the instructions, it appears that the jury was fully and fairly instructed as to all of the rules of law applicable to the evidence.”

2. It is in direct conflict with Penal Code 1096a.

3. It relies strongly on People v. Cook (1905), 148 Cal. 334 [ 83 P. 43 ], which was decided before 1927, the year in which Penal Code 1096a was enacted.

4. It relies on People v. Visconti (1916), 31 Cal.App. 169 [ 160 P. 410, 411 ], and People v. Wilson (1929), 100 Cal.App. 428 [ 280 P. 169 ], one decided before and one after Penal Code 1096a was enacted. Neither of those cases supports the principle on which People v. Eme was decided. They deal with the burden of proof which rests on a defendant to prove the defense of alibi. The distinction between the burden of proof which rests on the prosecution and that which rests on a defendant to prove such defense is pointed out in the dissenting opinion, at page 704, of the Kane case.

I concur in affirming all cases except People v. Shell Oil Co. (CR A 3286). I would affirm the judgment and the order in that case.