The opinion
McCOMB, J.
I dissent. I do not believe that the follow ing statement in the majority opinion is an accurate statement of the law: “To justify a criminal conviction, the trier of *113 fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.” (Italics added.)
It is my understanding that in a criminal case all that is necessary for a conviction is evidence that convinces the minds of those charged with passing upon the facts, and satisfies their consciences, that the defendant is guilty.
Proof beyond a reasonable doubt does not require proof to a mathematical certainty or proof which excludes a possible doubt. (Code Civ. Proc., § 1826.)
Section 1826 of the Code of Civil Procedure reads: “The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.” (See People v. Ah Sun, 160 Cal. 788, 791 [ 118 P. 240 ]; People v. Brotherton, 47 Cal. 388, 406 .)
I would affirm the judgment for the reasons expressed by Mr. Justice Piles in the opinion prepared by him for the District Court of Appeal in People v. Hall (Cal.App.) 37 Cal.Rptr. 686 . (See also Witkin, Cal. Evidence (1958) § 123, p. 148.)
Schauer, J., * concurred.
Respondent's petition for a rehearing was denied December 23, 1964. Mosk, J., did not participate therein. MeComb, J., was of the opinion that the petition should be granted.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.