Later courts went against this
Overruled in part by People v. Green, 47 Cal. 2d 209 (1956)
People v. Welch, 49 Cal. 174; People v. Murback, 64 Cal. 369 [30 P. 608]; People v. Brick, 68 Cal. 190 [8 P. 858]; and People v. French, 69 Cal. 169 [10 P. 378], and all other eases approving the instruction herein held to be erroneous, including People v. Kolez, 23 Cal.2d 670 [145 P.2d 580] ; People v. Lindley, 26 Cal.2d 780 [161 P.2d 227]; People v. Williams, 32 Cal.2d 78 [195 P.2d 393]; and People v. Byrd,, 42 Cal…
The opinion
TRAYNOR, J.
I concur in the judgment. The instruction in terms of Penal Code, section 1105, was erroneous for reasons set forth in People v. Thomas, 25 Cal.2d 880, 894-896 [ 156 P.2d 7 ], and in my concurring opinion in People v. Albertson, 23 Cal.2d 550, 586-589 [ 145 P.2d 7 ]. It is doubtful whether such an instruction should be given even if accompanied by a proper explanation, but in any event the sentence that the court added in its instruction to the text of the section did not explain adequately the meaning of the' section. I do not believe, however, that the error was prejudicial in this case; it is improbable that a reasonable jury properly instructed would have rendered a different verdict.
I believe that People v. Kolez, 23 Cal.2d 670 [ 145 P.2d 580 ], should be overruled for the reasons set forth in my dissenting opinion therein. Until it is, however, an instruction like the one there involved is not erroneous.